You Gotta Dance With the One that Brought You: The Impermissibility of Substituting Designated Representatives in Colorado’s Initiative Process

Introduction

On June 30th, 2014, the Colorado Supreme Court handed down its decision in In re Proposed Initiative 2013-2014 #103, reversing the Title Board’s action in this matter and holding that designated representatives cannot substitute an alternate if they are unable to attend a Title Board meeting. Rather, the Court found that the Title Board must delay its considerations until the next meeting which both designated representatives attend.

Background

Proposed Initiative #103 (“Initiative”) sought to establish the public trust doctrine for Colorado’s natural resources as a new section in Article XVI of the Colorado Constitution. If enacted, the proposed initiative would have potentially jeopardized Colorado’s water rights system by imposing the public trust doctrine on Colorado.

The public trust doctrine “operates to protect lands of communal value in perpetuity for the free and unimpeded access by the public under a trust held by the sovereign” (in this case, the State of Colorado). This “doctrine recognizes and seeks to ameliorate the interference of private ownership with public access to trust resources. The effect of the public trust doctrine is to convert the private owners of trust resources into permanent custodians of those resources under an easement held by the government in favor of the general public.” While several state courts throughout the U.S. have recognized and applied the public trust doctrine since the early nineteenth century, the Colorado Supreme Court has consistently declined to adopt the public trust doctrine.

Taking Initiative #103 to the Dance

Colorado law requires representatives be designated at the earliest stages of the initiative process and that each designated representative appear at any title board meeting, which the representative’s ballot issue is considered. When originally submitted, the Initiative listed two of the respondents in this matter, Phillip Doe and Barbara Mills-Bria, as the designated representatives. These individuals appeared at the first meeting in which the Title Board considered the Initiative and submitted affidavits required to serve as designated representatives. The Title Board accepted the affidavits and set a title for the Initiative.

Petitioners in this matter filed a motion for rehearing to challenge the Initiative on the grounds that it impermissibly addressed more than one subject and that the Initiative’s title was confusing, misleading, and failed to reflect its proponents’ true intent.

The Title Board scheduled hearing on these motions for next meeting, which was also the Title Board’s last regularly scheduled meeting for the current election cycle. However, Ms. Mills-Bria was unable to attend the meeting because she was attending a family member’s funeral out of state. At the suggestion of an employee of the Secretary of State’s office, respondents Mills-Bria, Doe, and Sandra Toland “submitted signed and notarized forms and affidavits to the Title Board purporting to substitute Toland for Mills-Bria as a designated representative for the proposed initiative. The Title Board accepted these forms, permitted the substitution, and then considered and denied the petitioners’ motions, affirming its prior decision to set title.”

Following denial of their motions for rehearing, the petitioners then filed for review in the Colorado Supreme Court. In addition to the claims in their motions for rehearing, the petitioners contested the Title Board’s “jurisdiction to rule against their motions because Mills-Bria, one of the designated representatives, was not present at the rehearing motion.

Stand By Your Initiative

The Court declined to consider whether the Initiative contained multiple subjects or was impermissibly vague because the majority found in the first instance that Toland’s substitution for Mills-Bria as a designated representative was improper under Colorado law.

Relying on section 1-40-106(4)(a)’s explicit requirement that “each designated representative appear at any title board meeting at which the designated representative’s ballot issue is considered” and finding no statutory provision that would authorize the substitution that occurred here, the majority found that the Title Board lacked authority to act in Mills-Bria’s absence. The statutes were not silent on the issue of substitution because the General Assembly contemplated the exact situation here, in which a designated representative might not be able to attend a given Title Board meeting. Rather, the statutes provide the remedy of delaying proposed initiative consideration until the Board’s next meeting. The majority was not swayed by respondents’ arguments that they had reasonably relied on the representation of the Secretary of State’s office employee that such a substitution was permissible. Rather, the majority found that the General Assembly had withheld all authority from the Title Board to proceed in the absence of any designated representative. The majority declined to take up respondents’ argument that a need for substitutions may arise in some future case where a designated representative’s inability to attend a Board meeting might not be temporary, as those circumstances were not before the Court here.

Consequently, the majority reversed the Title Board’s action and returned the measure to the Title Board for further proceedings consistent with the majority’s opinion.

Changing Designated Partners to Keep the Initiative at the Dance

In her dissent, Justice Márquez argued that the majority erred in reaching its decision because there is no explicit statutory prohibition against substitution of a designated representative and, in such cases, the Court has an obligation to “‘construe constitutional and statutory provisions governing the initiative process in a manner that facilitates the right of initiative.’” (citing Armstrong v. Davidson, 10 P.3d 1278, 1282 (Colo. 2000)). Justice Márquez also contended that the remedy cited by the majority was inadequate here in at least two ways. First, this remedy placed Mills-Bria “in the position of having to choose between missing a family member’s funeral or effectively abandoning a proposed initiative.” Second, this remedy is inadequate in those circumstances where, as here, the Title Board schedules an initiative for consideration at the Board’s last meeting in an election cycle. According to Justice Márquez, a designated representative who cannot attend the meeting for legitimate purposes is effectively left without a remedy. Lastly, Justice Márquez argued “by prohibiting the formal substitution of a designated representative, the majority actually hampers the ballot title process by postponing the consideration of a proposed initiative.” In this view permitting formal designated representative substitution prior to a Title Board meeting – as happened here – promotes efficiency and ensures continuity in the entire process.

Conclusion

When Colorado voters head to the polls this November, they will not confront the question of whether Colorado should adopt the public trust. While Colorado’s ranchers and water rights owners can rest easy this election cycle, they will need to remain vigilant against future such attacks on Colorado’s appropriative water rights systems, as the Initiative’s proponents are likely to renew their bid to impose the public rights doctrine after losing their turn to do so this November due to a procedural technicality.

 


Sources:

In re Proposed Initiative 2013-2014 #103 (No. 14SA137), 2014 CO 61 (Colo. 2014).

Designated Representatives, Colo. Rev. Stat. § 1-40-104 (2013).

Title Board – Meetings – Ballot Title – Initiative and Referendum, Colo. Rev. Stat. § 1-40-106(4)(a-d) (2013).

Hope M. Babcock, “The Public Trust Doctrine: What a Tall Tale They Tell,” 61 S.C. L. Rev. 393, 396-97 (2009).

Stephen H. Leonhardt and Jessica J. Spuhler, “The Public Trust Doctrine: What It Is, Where It Came From, and Why Colorado Does Not (and Should Not) Have One,” 16 U. Denv. Water L. Rev. 47, 63-64 (2012).

Sheridan Block, Colorado: Public Trust Proposal Blocked from Ballot (July 7, 2014), Ouray Plaindealer, available at http://www.ouraynews.com/articles/2014/07/07/colorado-public-trust-proposal-blocked-ballot.