Justice Bender on Elections Law
From Judgepedia
Justice Bender concurred with the majority opinion, which, in a 4-3 decision against the vigorous dissents of Justices Eid, Coats, and Rice struck down a voter-proposed ballot measure that would have created an environmental conservation agency with a mission of protecting land, wildlife, water, and public resources by resolving conflicts between "economic interests" and "public ownership and values" in favor of the latter. The Majority held that the inclusion of the mission and the creation of the agency constituted two separate subjects, and thus that the initiative violated [Colorado's single subject rule].
*ON COLORADO'S SINGLE SUBJECT RULE:"This initiative improperly pair[s] the creation of a new environmental department with the separate and discrete subject of the creation of a public trust standard."
* COLORADO'S SINGLE SUBJECT RULE:"In this initiative, the public trust standard subject is paired with the subject of reorganizing existing natural resource and environmental protection divisions, programs, boards, and commissions, and these are separate and discrete subjects that are not dependent upon or necessarily connected with each other.”
*ON WHETHER TO TRUST THE WISDOM OF THE VOTERS: "An initiative that joins multiple subjects poses the danger of voter surprise and fraud occasioned by the inadvertent passage of a surreptitious provision coiled up in the folds of a complex initiative. We must examine sufficiently an initiative's central theme to determine whether it contains hidden purposes under a broad theme. The initiative before us today is complex and subtly worded. * * * Despite the statement of the initiative's proponents that the initiative simply creates a new environmental department with a conservation stewardship mission, a plain reading of the initiative reveals that it superimposes onto existing constitutional and statutory provisions the duty to resolve every conflict between “economic interests” and “public ownerships and public values” in favor of “public ownerships and public values.”
Justice Eid authored the dissenting opinion, in which Justices Coats and Rice joined, protesting that "...[a]ccording to the majority, the initiative's proponents can create a new department, but they cannot-without running afoul of the single subject requirement-give that department a mission. * * * [T]he new department's 'conservation stewardship' mission is sufficiently connected to the creation of the department itself.
* ON COLORADO'S SINGLE SUBJECT RULE:"In my view, [the initiative] passes muster under the single subject requirement because it contains a single, easily identifiable subject- namely the creation of a new department of environmental conservation."
* ON WHETHER TO TRUST THE WISDOM OF THE VOTERS:"We have repeatedly held that it is not our role at this stage to construe the proposed initiative. This is a matter “for judicial determination in a proper case should the voters approve the initiative.” Nevertheless, the majority strays into construction in this case by giving the initiative's 'conflict' language an extraordinarily broad interpretation-an interpretation that goes significantly beyond the plain language of the initiative itself.”
* ON WHETHER TO TRUST THE WISDOM OF THE VOTERS:"These 'subjects' proposed by the majority are simply straw men, however, as the initiative's proponents do not suggest any of them. Instead, the initiative is focused on a much narrower theme-that is, the creation of the new department of environmental conservation. Contrary to the majority's suggestion, it would come as no surprise to voters that a new department of environmental conservation would have 'conservation stewardship' as its priority."
* ON ADHERENCE TO PRIOR PRECEDENCE / DEFERENCE TO VOTERS:"In its application of the single subject test today, the majority significantly increases the degree of scrutiny to which we subject proposed voter initiatives, [since] traditionally we have stated that there must be a 'necessary or proper' connection between the component parts of a proposed initiative. * * * Under the [old] standard, the single subject requirement was not violated unless an initiative has 'at least two distinct and separate purposes which are not dependent upon or connected with each other.' * * * In my view, 'conservation stewardship' is sufficiently connected with the creation of the new department to meet the single subject requirement as it has been traditionally defined in our case-law."
*ON BURDENING CITIZEN-DRIVEN INITIATIVE AND REFERENDUM EFFORTS: "The majority's approach requires an initiative's proponents to draw their proposal as narrowly as possible, leaving out components that are sufficiently connected with, but not absolutely necessary to, carrying out the initiative's central theme. * * * Taking our cue from the legislature, we have recognized that The single-subject requirement must be liberally construed. * * * The majority's approach flies in the face of this liberal construction by imposing a new level of heightened scrutiny under which all but the narrowest of proposed initiatives will fail. * * * Today's decision effectively requires the initiative's proponents to accomplish a single goal by proposing two separate initiatives-one to consolidate existing boards and commissions into a new department, and a second to give that department a mission to promote conservation stewardship."
*ON WHETHER TO TRUST THE WISDOM OF THE VOTERS: "The proposed initiative might be a good idea or a bad idea; we must leave that decision to the voters."
- In a bitterly disputed 4-2 decision (Justice Allison Eid did not participate), Justice Bender concurred in the majority opinion, written by Justice Alex J. Martinez, who along with Justices Mullarkey and Hobbs, struck down a citizen-sponsored ballot measure that, if passed, would have prohibited Colorado from providing non-emergency government services to illegal immigrants. The Majority characterized the measure as violative of the Colorado's single subject rule because it contained "at least two subjects," that it viewed as "unrelated:" "decreasing taxpayer expenditures" and "restricting unrelated administrative services."
- In a vociferous dissent, Coats and Rice expressed outrage, noting that "once again the majority finds a popular-initiated proposal for amending the state constitution unsuitable for consideration by the electorate," even though the Initiative "contains a single mandate," of restricting government services to illegal immigrants, and further noting a "lack of consistency in applying the single-subject requirement" that "understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"We agree that Initiative # 55 contains multiple subjects connected only by the broad theme of restricting non-emergency services. The concept of a single subject at first glance appears straightforward. However, an initiative may be offered as a single subject by stating the subject in broad terms. If an initiative states vague terms, then it may appear to present a single subject. But when the details necessary to understand the subject are considered, the initiative may involve separate subjects."
* ON HOW REDUCING GOVERNMENT SPENDING IS NOT RELATED TO REDUCING GOVERNMENT SERVICES:"Turning to the Initiative itself, we determine that its claimed subject, restricting non-emergency services, is broad and intended to affect all government operations. Against this backdrop, we explore the purposes effected by restricting all non-emergency services not mandated by federal law and identify two distinct, unrelated purposes: reducing taxpayer expenditures by restricting the delivery of benefits in the nature of medical and social services to individuals lawfully present in Colorado and restricting other largely administrative services that do not primarily confer benefits to individuals. Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE: "[A]n initiative grouping distinct purposes under a broad theme will not satisfy the single subject requirement. That is, although an initiative may contain several purposes, they must be interrelated."
* ON THE LEVEL OF SPECIFICITY REQUIRED FOR A PETITION TO ESCAPE THE COURT'S SCRUTINY: "the Initiative does not thereafter define “non-emergency” and “services,” categorize the types of services to be restricted, or set forth the purpose or purposes of restricting non-emergency services. The only stated limit on the scope of this theme pertains to federal law."
* ON THE SOCIETAL EFFECTS OF INHIBITING ILLEGAL IMMIGRANT'S ACCESS TO BASIC SERVICES: "[A]lthough the Initiative restricts the target group's access to administrative recording services, its effect is broader. In addition to affecting the target group, the Initiative also affects citizens by impairing the functions of regulatory, licensing and dispute-resolution services. For example, it would affect anyone transacting real estate business and could complicate the transfer of real property from unlawfully present to lawfully present individuals and the recording of lien interests. * * * conclude these two purposes-terminating services benefiting the welfare of individuals not lawfully present in Colorado and denying access to unrelated administrative services that facilitate organization and regulation-are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative # 55 presents the possibility of both prohibited practices."
* ON WHY FAILING TO SPECIFY WHICH GOVERNMENT SERVICES WILL BE REVOKED IS UNSATISFACTORY:"The Initiative's failure to specify any definitions, services, effects, or purposes makes it impossible for a voter to be informed as to the consequences of his or her vote. This facial vagueness not only complicates this court's attempt to understand the Initiative's subjects, but results in items being concealed within a complex proposal as prohibited by the single subject rule."
*ON THE RELATIONSHIP BETWEEN DECREASING SERVICES AND REDUCING SPENDING: "[T]here no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for services benefiting individuals, such as medical and social services, and also restrict unrelated administrative services such as recording services that may inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT:"Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative # 55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate 'subject.'"
* ON THE MAJORITY'S BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"[T]he majority unself-consciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that restricting non-emergency police, fire, and medical services adversely affects the welfare of those to whom the restriction applies while restricting other kinds of non-emergency services does not, it characterizes these two purposes, or “subjects,” as “decreasing taxpayer expenditures” by 'terminating services benefiting the welfare of individuals” and “restricting unrelated administrative services."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"[T]he majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it's clear and expressed ultimate objective. The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing. And according to the majority's logic, each such 'purpose,' apparently constitutes a 'subject' of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD: "[S]urely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals."
*ON TRUSTING THE WISDOM OF THE VOTERS OVER THE COURTS:"The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals. There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences."
- In a voter-driven ballot measure that, if successful, would have required "English Language Education in Public Schools," Justice Hobbs writing for the majority, recognized the additional, unstated purposes present in the amendment of constraining school boards' traditional power to require bilingual education in public schools. It also found, however, that this effect was not a subject separate from the initiative's central theme of requiring English language instruction. Rather, the purpose of constraining school boards' traditional powers was “a logical incident of adopting structured English immersion.” Therefore, the majority opinion, via Justice Hobbs, found the initiative did not violate the single subject requirement.
- In considering whether the voters should be able to consider a ballot measure that would have added a sunset provision, requiring all tax increases to automatically expire after 10 years, Justice Mullarkey concurred in the majority opinion, written by Rice, which held that voters should not be able to consider the measure because "while either or both tax or debt limitations may be attractive, the voters would also be limiting * * * relief from [TABOR's] spending caps."
- In an animated dissent, Justice Coats expressed outrage, noting that "once again the majority deprives the voters of an opportunity to express themselves on a proposal to limit public fundraising," and further arguing that there was "no principled basis" for treating limitations on "taxation" and "public indebtedness" as "separate subjects."
*ON THE MAJORITY OF THE COURT'S BIAS AGAINST THE CONSERVATIVE ECONOMIC AGENDA: "Even a cursory review of this court's ballot title jurisprudence reveals an unmistakable lack of uniformity in our treatment of the single-subject requirement. Surely it cannot go unnoticed that popularly initiated measures affecting public funding have been subjected to far more exacting, and seemingly arbitrary, line-drawing than has been applied to most other initiatives."
*ON WHY LIMITING TAXES AND PUBLIC DEBT ARE RELATED TO THE SAME PURPOSE:"The proposed time limitation on the effective life of public fundraising measures applies evenhandedly to all such devices governed by TABOR, which merely amount to different methods of raising public funds for expenditure. Whether they involve taxation or incurring public indebtedness, the techniques of public fundraising covered by the proposal are not sufficiently distinguishable in the public mind to suggest either an attempt to combine disparate voting blocks in order to secure passage or to surreptitiously include certain fundraising techniques that voters would be surprised to find in combination with the others. Quite the contrary, in light of their common purpose, there is little or no reason to believe that voters who would be inclined to favor a time limitation on exceptions to TABOR would be so inclined only if it included exceptions involving either taxation or debt creation, but not both."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT:"The majority makes no attempt to relate its finding of multiple subjects to these purposes, and instead simply concludes that the proposal at issue in this case contains subjects that are not sufficiently “dependent upon” or “connected with” each other because a similar distinction had been made with regard to other public funding proposals in the past. Maj. op. at 239. Whatever the merits of those prior holdings, given the complexity and potential for misunderstanding of the individual proposals in those cases, it is clear (at least to me) that neither danger meaningfully threatens the current proposal. The proposed initiative in this case consists of two short paragraphs of two sentences each, and it is closely paraphrased in a single sentence, with the addition of a cross-reference to the TABOR amendment, in the title fixed by the board. Both the proposed initiative and the title expressly and clearly state that the proposal would limit the effective life of any ballot issue increasing either taxes or public indebtedness."
