2020 CO 61
Colo.2020Background:
- Proponents submitted Initiative 2019–2020 #315 to create a new Colorado preschool program funded by reallocating existing cigarette/tobacco tax and settlement revenues and by imposing a new tax on tobacco-derived nicotine vapor products.
- The Title Board set a title and ballot submission clause describing a $6.3 million annual tax increase, the creation/administration of a preschool program, a new tax on vaping products, and reallocations from certain health-related programs and tobacco settlement funds.
- Petitioner Anna Jo Haynes challenged the title, arguing the initiative violates Colorado’s single-subject rule and that the title fails the clear-title requirement—specifically contending the title misstates where the tax is created, conceals a “penalty” on localities that ban tobacco/nicotine sales, and omits identification of programs that will face funding cuts.
- The Title Board denied rehearing; the Supreme Court reviewed under the deferential standard that reverses only if a title is insufficient, unfair, or misleading.
- The majority held the initiative presents a single subject (creation/admin of a preschool program funded by tobacco/nicotine taxes) and that the Board’s title fairly and succinctly states the initiative’s central features; a dissent argued the title conceals a punitive provision stripping local shares for jurisdictions that ban tobacco/nicotine products.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Single-subject rule | Haynes: Initiative combines funding for preschool with an unrelated punitive scheme penalizing local bans, thus multiple subjects | Proponents/Board: All funding and tax provisions are implementing measures necessarily related to creating/administering the preschool program | Court: Initiative comprises one subject—creation/admin of preschool funded by tobacco/nicotine taxes; challenged provisions are related implementation details |
| Clear-title wording (tax location) | Haynes: Title misleads by implying the new vapor tax is created by the Constitution rather than statute | Board/proponents: Title need only inform voters a new tax will be imposed; where it is enacted is not a central feature | Court: Title sufficiently and fairly summarizes central feature (a new tax), and Board’s drafting choices are within discretion |
| Disclosure of local-ban consequence | Haynes: Title fails to disclose that localities banning tobacco/nicotine products would lose state cigarette tax allocations (a significant, punitive effect) | Board/proponents: Provision redirects existing revenues as an implementation mechanism; Board need not list all details and isn’t required to label it a penalty | Court: The title alerts voters generally to reallocation; the lost-local-share effect is an implementing consequence and not surreptitious |
| Disclosure of program funding cuts | Haynes: Title should identify major programs cut by reallocations | Board/proponents: Board must balance brevity and clarity and may summarize affected funds generally (e.g., "certain health-related programs") | Court: Board reasonably summarized reallocations; not required to itemize specific programs in title |
Key Cases Cited
- In re Title, Ballot Title & Submission Clause for 2013–2014 #90, 328 P.3d 155 (Colo. 2014) (defers to Title Board unless title is insufficient, unfair, or misleading)
- In re Title, Ballot Title & Submission Clause for 2015–2016 #73, 369 P.3d 565 (Colo. 2016) (title must fairly summarize central features; review not for best possible title)
- In re Title, Ballot Title & Submission Clause for 2009–2010 #91, 235 P.3d 1071 (Colo. 2010) (general-theme characterization cannot rescue multi-subject initiatives)
- In re Title, Ballot Title & Submission Clause for 2013–2014 #76, 333 P.3d 76 (Colo. 2014) (single-subject rule prevents combining subjects to attract broader support)
- In re Title, Ballot Title & Submission Clause & Summary for 1997–1998 No. 74, 962 P.2d 927 (Colo. 1998) (implementation details do not necessarily create separate subject)
- In re Title, Ballot Title & Submission Clause & Summary for 1997–98 #62, 961 P.2d 1077 (Colo. 1998) (Board’s titles overturned only for material and significant omission, misstatement, or misrepresentation)