Kemper v. Leahy
2014 CO 66
| Colo. | 2014Background
- This is an original proceeding under section 1-10-107(2), C.R.S. (2013/2018) seeking review of the Ballot Title Setting Board's findings that Initiative 2013-2014 #89 (Initiative #89) has a single subject and that its Titles are clear.
- Initiative #89 proposes adding a new Section 32 to Article II of the Colorado Constitution, creating a public right to Colorado's environment and designating the environment as the common property of Coloradans.
- Subsection (1) declares the environment (clean air, pure water, natural and scenic values) as common property; subsection (2) makes government trustees to conserve the environment; subsection (8) authorizes local governments to enact more restrictive environmental laws than the state and provides that the more restrictive law governs in conflicts.
- The final version was submitted March 21, 2014; the Title Board held a hearing, concluded a single subject, and set Titles under section 1-40-106(1).
- Petitioners Kemper, plus Cordero and Prestidge, challenged the single-subject and the clarity of the Titles, filed motions for rehearing, and obtained an amended Title.
- The court applies a deferential standard of review, permitting reversal only for clear error in single-subject determination or for clearly misleading Titles; the merits of the initiative are not reviewed at this stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Initiative #89 violate the single-subject requirement? | Kemper argues multiple subjects (common property, public trust, local preemption) are not properly connected. | Board determined the measures relate to a single objective: creating a public right to Colorado's environment. | No; the initiative has a single subject. |
| Are the Titles for Initiative #89 misleading or inadequate? | Titles omit material provisions and use a catchphrase that misleads. | Titles are fair, clear, accurate, and within statutory requirements. | No; Titles are not misleading. |
Key Cases Cited
- Waters II, 898 P.2d 1076 (Colo. 1995) (single subject; dual purposes must be unified under one objective)
- In re Title, Ballot Title, & Submission Clause for 2009-2010 No. 45, 234 P.3d 642 (Colo. 2010) (deference to Title Board; validity of titles if not clearly misleading)
- In re 1999-2000 No. 256, 12 P.3d 256 (Colo. 1999) ( Titles must be fair, clear, and accurate but need not include every detail)
- In re Title, Ballot Title, Submission Clause, & Summary for 2007-2008 No. 17, 172 P.3d 871 (Colo. 2007) (standard for single-subject review; scope of inquiry)