Cordero v. Doe

¶1dissenting.

¶2123 Today the majority concludes that initiative and referendum statutes preclude the substitution of a proposed initiative's designated representative. The majority does not rely on any statutory provision that expressly prohibits substitution-indeed, no such provision exists. Instead, the majority concludes that because section 1-40-106(4)(d), CRS. (2018), permits the Title Board to postpone consideration of a proposed initiative when the designated representative fails to appear at a Title Board meeting, the legislature intended to foreclose any substitution of a designated representative. By reading into the statutes a prohibition on the substitution of a designated representative where no such prohibition exists, the majority disregards our obligation to "construe constitutional and statutory provisions governing the initiative process in a manner that facilitates the right of initiative." Armstrong v. Davidson, 10 P.3d 1278, 1282 (Colo.2000). Moreover, the majority fails to appreciate the inadequacy of its proposed remedy. The majority places a designated representative in the position of having to choose between missing a family member's funeral or effectively abandoning a proposed initiative. I do not believe that the statutes mandate such a lose-lose choice, nor is such a statutory construction consistent with this court's duty to protect the voters' fundamental right to the initiative process. Finally, the majority ignores the practical effects of an outright ban on substitution on the efficiency of the Title Board review process. For these reasons, I respectfully dissent.

¶3I.

¶4€24 This court has long recognized that the "right of initiative and referendum, like the right to vote, is a fundamental right under the Colorado Constitution." Loonan v. Woodley, 882 P.2d 1380, 1383 (Colo.1994). To give full effect to this fundamental right, "the initiative process should be liberally construed so that the constitutional right reserved to the people may be facilitated and not hampered by either technical statutory provisions or technical construction thereof." Id. (internal quotation marks and alterations omitted). In other words, "[the initiative law favors placing matters before the voters," Armstrong v. Davidson, 10 P.3d 1278, 1281 (Colo.2000), and we should not create *134procedural hurdles that conflict with or detract from the voters' "guarantee of participation in the political process." Loonan, 882 P.2d at 1383. Indeed, the General Assembly, in enacting the initiative and referendum statutes, expressly declared that "it is not the intention of this article to limit or abridge in any manner the powers reserved to the people in the initiative and referendum, but rather to properly safeguard, protect, and preserve inviolate for them these modern instrumentalities of democratic government." § 1-40-101(1), C.R.S. (2018).

¶5125 I agree with the majority that the "statutes require that designated representatives be identified at the earliest stages of the initiative process." Maj. op. 18. I also agree that no statutory provision expressly authorizes substitution.1 Maj. op. 116. Given this statutory silence on substitution, I disagree with the majority that the "the clear intent of the General Assembly is to require the designated representatives' continued, uninterrupted involvement throughout the proceedings before the Title Board." Maj. op. 116 (emphasis added). We have previously held that where the initiative and referendum statutes are silent regarding a procedural detail, they should be construed so as to advance the right of initiative. See Armstrong, 10 P.8d at 1288 (holding that proponents were permitted to cireulate a petition during the pendency of appellate review because "the Initiative and Referendum statutes do not contain any provision prohibiting a proponent from cireulating a petition in reliance on the Title Board's action while an opponent is pursuing appellate remedy"). In my view, the majority's prohibition on substitution is inconsistent with our approach in Armstrong and creates an unnecessary impediment to the voters' fundamental right of initiative.

¶6126 The majority reasons that "the statutes are not silent" on the issue of substitution because section 1-40-106(4)(d), C.R.S. (2013), provides that if a designated representative is not present for a meeting of the Board, the Board may consider the ballot issue at its next meeting. Maj. op. 117. However, in relying on section 1-40-106(4)(d), the majority conflates the duties required of an individual onee he or she becomes a designated representative with the procedures for becoming a designated representative in the first place. Section 1-40-106(4)(d) authorizes the Title Board to delay consideration of a measure when a designated representative fails to fulfill his or her statutory duty to attend the Title Board meeting. But, section 1-40-106(4)(d) does not address whether, and under what cireum-stances, an individual may be substituted for a designated representative.

¶7127 The only provision in the initiative and referendum statutes describing how a person becomes a designated representative appears in section 1-40-104, C.R.S. (2018), which states that "[alt the time of filing of a draft ... the proponents shall designate the names and mailing addresses of two persons who shall represent the proponents in all matters affecting the petition...." Section 1-40-106(4)(a) requires that "[elach designated representative of the proponents shall appear at any title board meeting at which the designated representative's ballot issue is considered." In Hayes v. Ottke, 2013 CO 1, ¶ 19, 293 P.3d 551, 556, we construed the phrase "each designated representative" in section 1-40-106(4)(a) to require both designated representatives to appear at a rehearing before the Title Board.. We reasoned that subsection (4)(a) furthers the information-gathering purpose of the Title Board's public meetings and facilitates its ability to understand the intent and purpose of a proposed initiative by requiring the designated representatives to be available to explain the initiative and answer the Title Board's questions. Hayes, ¶ 22, 293 P.3d at 556. However, our concern in Hayes was not with the procedure for becoming a designated representative, but only with ensuring that the Title Board had access to the information and perspective of the designated represen*135tatives in order to carry out its title-setting function.2 CL id. at 126, 298 P.3d at 557 ("In the absence of the designated representatives, the Board was left to rely on the statement of an objector...."). In short, our holding in Hayes, including our conclusion that section 1-40-106(4)(a)'s attendance requirement was "unambiguous and inflexible," concerned the duties of individuals already serving as designated representatives, but did not purport to address how (or when) an individual may become a designated representative.

¶81 28 The real question before us is whether an individual who was not designated a representative "[alt the time of any filing of a draft," but who nonetheless meets all other requirements to become a designated representative-including, certifying by notarized affidavit that he or she is familiar with the provisions governing initiatives as well as the Secretary of State's summary of responsibilities-may be considered a designated representative under the statute. See $ 1-40-106(4)(b)-(c). The Title Board's ability under section 1-40-106(4)(d) to postpone consideration of an initiative until a later meeting certainly serves as a remedy where an existing designated representative cannot fulfill his or her statutory duty to attend a scheduled Title Board meeting. But that provision does not, either by its plain language or read in context of the initiative and referendum statutes, address whether a designated representative may withdraw and be replaced by a new designated representative who can attend the Title Board meetings. Given the statutory silence on this question, and our obligation to "construe constitutional and statutory provisions governing the initiative process in a manner that facilitates the right of initiative," Armstrong v. Davidson, 10 P.3d 1278, 1282 (Colo.2000), I would not construe these provisions to forbid substitution.

¶9129 I also disagree with the majority's conclusion that the Title Board's ability under section 1-40-106(4)(d) to "consider the ballot issue at its next meeting" serves as an adequate remedy for a designated representative's inability to attend a meeting. As a practical matter, this "remedy" is unavailable where-as here-the rehearing is conducted at or after the Board's last regularly scheduled meeting for an election cycle. The Title Board "season" is quite short: by statute, the Title Board's first meeting may be held no sooner than "the first Wednesday in December after an election," and the last meeting must commence no later than "the third Wednesday in April" in the year in which the measure would be presented to voters. § 1-40-~106(1). Under the majority's formulation, where an initiative is scheduled for consideration at the Title Board's last meeting in an election cycle, a designated representative who cannot attend the meeting for legitimate purposes is left without a remedy because the proposed initiative cannot be considered at a later date and still be included on the ballot that year. Here, the rehearing on the proposed initiative was conducted at a continuation of the Title Board's last regularly scheduled meeting for the 2013-2014 election cyele. Because the majority concludes that substitution of designated representatives is forbidden, Mills-Bria was faced with a choice between forgoing a family member's funeral or effectively abandoning the initiative she represented because the Title Board could not set a title in her absence. In my view, the majority's approach is inconsistent with this court's obligation to liberally construe the constitutional and statutory provisions governing the initiative process to facilitate, not hamper, this constitutional right reserved to the people. Fabec v. Beck, 922 P.2d 330, 341 (Colo.1996); Loonan, 882 P.2d at 1384.

¶1030 Finally, I disagree with the majority's view that allowing substitution would "disrupt the continuity that the statutes call for, thereby impairing the Title Board's functions and frustrating the aims of the General Assembly." Maj. op. 116. The majority asserts that section 1-40-106(4)(d) demonstrates the legislature's intent to ensure con*136tinuity in the proceedings by requiring the continued, uninterrupted involvement of the designated representatives. Maj. op. 116. Yet the majority fails to demonstrate how section 1-40-106(4)(d) (permitting the Title Board to consider a ballot issue at its next meeting) necessarily forbids substitution, so long as a formally designated representative can appear at the meeting. By prohibiting formal substitution of a designated representative, the majority actually hampers the ballot title process by postponing the consideration of a proposed initiative. If anything, permitting the formal substitution of a designated representative prior to a Title Board meeting-as happened here-promotes efficiency and ensures continuity in the process by allowing timely consideration of a proposed initiative and avoiding delay.

¶11IL.

¶12T 31 The right of initiative and referendum, like the right to vote, is a fundamental right under the Colorado Constitution. Where, as here, the initiative and referendum statutes are silent on a particular point of procedure, we have made clear that we should liberally construe these provisions to give full effect to the constitutional right reserved to the people. See Armstrong, 10 P.3d 1278, 1283 (Colo.2000). By construing statutory silence to prohibit the formal substitution of a designated representative, the majority instead hampers this constitutional right. For these reasons, and because I otherwise would reject the Petitioners' challenges to the title set by the Title Board, I would affirm the Title Board's actions. Accordingly, I respectfully dissent.

¶13I am authorized to state that JUSTICE BOATRIGHT and JUSTICE HOOD join in this dissent.