Colorado public bank amendment (2014), Title Board hearing, August 21, 2013

The title board sets a title for each proposed initiative and then frames the title as a "Yes" or "No" question for the ballot. Before the title board can set the title, however, it is charged with deciding whether the initiative meets the so-called "single subject" provision of the state constitution.As noted here, the title board has, on the previous go-around, based on their political positions, suppressed our effort by claiming that our initiative fails to meet the single subject provision. Once again, on August 21, 2014, the title board chose to go this route.

As title board member Dan Domenico argued, our measure contains two subjects because: (1) it creates a bank to do various things; and (2) it exempts the money the bank earns from loans (interest income) from the restrictions of TABOR, the so-called "taxpayer bill of rights," which forces the state to drop or privatize its public services, and never take in any more revenue per capita than it did years ago--a definition of inefficiency.

The problem with Mr. Domenico's argument, as we discovered today, is that the state supreme court has ruled that the title board must conform to the manner in which the General Assembly sets titles for its measures:

In setting titles for initiatives, the Board is directed to "apply judicial decisions construing the constitutional single-subject requirement for bills," and is advised to "follow the same rules employed by the general assembly in considering titles for bills." [Matter of Title, Ballot Title & Submission Clause, & Summary with Regard to a Proposed Petition for an Amendment to Constitution of State of Colo. Adding Subsection (10) to Sec. 20 of Art. X (Amend Tabor 25), 900 P.2d 121, 124-25 (Colo. 1995), § 1–40–106.5(3)].

The current (69th) session of the General Assembly, has passed a law, which it has referred to referendum, that permits a tax on wholesale marijuana (up to 15%), which also says that the revenues from such a tax would not be subject to certain provisions of TABOR, to wit:

(d.3) NOTWITHSTANDING ANY LIMITATIONS ON REVENUE, SPENDING, OR APPROPRIATIONS CONTAINED IN SECTION OF ARTICLE X OF THE STATE CONSTITUTION OR ANY OTHER PROVISION OF LAW, ANY REVENUES GENERATED BY THE RETAIL MARIJUANA EXCISE AND SALES TAXES IMPOSED PURSUANT TO PARAGRAPHS (d.1) AND (d.2) OF THIS SUBSECTION (5), AS APPROVED BY THE VOTERS AT THE STATEWIDE ELECTION HELD IN NOVEMBER OF 2013, MAY BE COLLECTED AND SPENT AS VOTER APPROVED REVENUE CHANGES WITHOUT ADDITIONAL VOTER APPROVAL. (see page 6 of the bill, here)

In other words, the title board's ruling regarding our proposed initiative violates the law, because exempting a measure from TABOR does not count as a second subject.

We will be appealing this ruling. At this time, we expect that the appeal will be heard on September 4th, at 1700 Broadway, on the second or third floor. More to follow.