Justice ERICKSON delivered the Opinion of the Court.
Timothy Francis Koch, the proponent of an initiative petition, pursuant to section 1-40-101(3), 1B C.R.S. (1980), requests review of the validity of the title, submission clause, and summary set by the Title Setting Board (Title Board)
Koch, along with his cosponsor, Mary Stephens, submitted a proposed amendment to Article IX, Section 17 of the Colorado Constitution to the secretary of state. The initiative proposal relates to the establishment of a refund account for state and county taxes so that tax dollars which have been earmarked for the education of a student residing in a given school district may, if the student attends an out-of-district or private school, "follow" the student. The Title Board held a hearing at which it set the title, submission clause, and summary for the initiative. Koch filed a motion for rehearing. The Title Board granted Koch a rehearing and, after listening to Koch's comments on the matter, made certain changes to the title and submission clause. Koch filed a pro se petition in this court challenging the decision of the Title Board in setting the title, submission clause, and summary at the rehearing. Thereafter, to satisfy the statutory requirement that the motion for rehearing be overruled, Koch filed a transcript of the Title Board rehearing.
Article V, Section 1(2) (1991 Supp.) of the Colorado Constitution provides that the people reserve the right to propose state legislation and constitutional amendments by initiative petition. The proponents of an initiative petition must first submit an original draft for review and comment to the directors of the legislative council and the office of legislative legal services. § 1-40-101(1), 1B C.R.S. (1991 Supp.). No later than two weeks after the date of submission, comments concerning the format or contents of the petition are released at an open public meeting. Id. After the meeting, the draft is submitted to the secretary of state who sits on a board with the attorney general and the director of the office of legislative legal services or the director's designee. § 1-40-101(2), 1B C.R.S. (1991 Supp.). It is the duty of the board to
Id. The purpose of the title setting process is to ensure that both persons reviewing an initiative petition and the voters are fairly and succinctly advised of the import of the proposed law. Dye v. Baker, 143 Colo. 458, 460, 354 P.2d 498, 500 (1960). During an election, the wording of the title, submission clause, and summary for an initiative on the ballot should not mislead voters into voting for or against a proposition. Id. The board must also be cognizant of the need for brevity. See Cook v. Baker, 121 Colo. 187, 193, 214 P.2d 787, 790 (1950) (disapproving a 369 word submission clause for a proposed amendment containing 505 words). The board is not required to describe every nuance and feature of the proposed measure. In re Proposed Initiative Concerning "State Personnel System", 691 P.2d 1121, 1124 (Colo.1984).
Our review of the Title Board's action is limited by the following principles: (1) We should not address the merit of the proposed initiative; (2) all legitimate presumptions must be resolved in favor of the board; (3) a board-prepared title should only be invalidated in a clear case; (4) unless clearly misleading, we should not interfere with the board's choice of language; and (5) we should not interpret the meaning of the proposed language or suggest how it will be applied if adopted by the electorate. See In re Proposed Initiative on Surface Mining, 797 P.2d 1275, 1278-79 (Colo.1990); In re Proposed Initiative Under the Designation "Tax Reform", 797 P.2d 1283, 1288-89 (Colo.1990). Our duty is to ensure that the title, submission clause, and summary fairly reflect the proposed initiative and will not mislead the signers of the initiative petition and, if the petition results in the measure appearing on the ballot, the voters. Initiative on Surface Mining, 797 P.2d at 1279.
Prior to reaching the merits of Koch's claim, we address the procedural posture of this action. The initiative statutes provide two methods for challenging a title, submission clause, and summary. If the proponents of an initiative are not satisfied with the title, submission clause, and summary provided by the board they may move for a rehearing. Section 1-40-101(3). If the motion is overruled, the proponents may file the action with the supreme court. Id. Similarly, under section 1-40-102(3)(a) any registered elector who is not a proponent and who is not satisfied with the board's action may move for a rehearing and, if the motion is overruled, may file the action with the supreme court. For proponents or a qualified elector to successfully challenge the board's action under sections 1-40-101(3) and 1-40-102(3)(a) the title, submission clause, and summary must be either unfair or found to not "clearly express the true meaning and intent" of the proposed initiative. Pursuant to sections 1-40-101(3) and 1-40-102(3)(a), an appeal to the supreme court must be accompanied by a certified copy of the initiative petition with the title, submission clause, and summary set by the board, together with a certified copy of the motion for rehearing and the board's ruling on the motion. The supreme court may either affirm the action of the board or reverse and remand the action with instructions pointing out the board's error. Sections 1-40-101(3), -102(3)(a).
It is unclear whether Koch filed the present action under section 1-40-102(3)(a) or 1-40-101(3). In his brief, Koch states, "The petitioner, under 1-40-102(3), [1B] C.R.S. [(1991 Supp.)], has appealed to the Colorado Supreme Court so the Title Board's action will be reversed and `the Court shall remand it with instructions, pointing out where[in] the board is in error.' (1-40-101(3).)" Petitioner's Brief at 1. Since Koch is a proponent of the initiative, however, he may only file under section 1-40-101(3). While we note that both sections provide essentially the same procedure, for purposes of this opinion we will assume that Koch made a section 1-40-101(3) filing even though the petition is stated to be under section 1-40-102(3).
Koch challenges the Title Board's construction of the title and use of the title in the submission clause by claiming that it is confusing and will mislead the public. The title at issue characterizes the initiative as
The submission clause adds the words "Shall there be" to the beginning of the title and places a question mark at the end.
Koch claims that the first clause misleads the public because it doesn't (1) state which taxpayers will receive a refund, (2) explain the purpose of the refund, (3) state if refunds are paid only for a student no longer attending school in Colorado, and (4) fails to explain the mechanism of the refund
Certain of Koch's claims go too far. For example, Koch contends the title misleads the public because it fails to provide specific tax information. He reasons such information is necessary because "there are several different categories of state taxes." Petitioner's Brief at 4. The tax allocation scheme of the proposed initiative, however, only mentions state and county taxes and offers no guidance as to more specific state tax categories. In effect, Koch insists the Title Board provide a title that includes more information than is contained in the initiative. To do so would exceed the board's statutory powers.
The Title Board's statutory mandate is that it "shall, whenever practicable, avoid titles for which the general understanding of the effect of a "yes" or "no" vote will be unclear." Section 1-40-101(2). It is not "practicable" when such clarity demands adding provisions to an initiative to reflect what the proponent insists was the "true intent" of the proposed amendment. Koch maintains that he apprised the Title Board of the true intent of the statute at the rehearing. The transcript of the hearing shows that even Koch was aware of the inherent ambiguity of some of the initiative's wording.
Koch further insists the initiative contains several complicated issues and, as a result, the Title Board should be precluded from attempting to keep the title brief. His argument is without merit. Section 1-40-101(2) mandates that ballot titles be brief. See also Cook v. Baker, 121 Colo. 187, 193, 214 P.2d 787, 790 (1950). Koch must address his dissatisfaction with the initiative statute to the General Assembly.
Comparing the wording of the initiative with the title prepared by the Title Board, we find that the title is not clearly misleading. While there may be some ambiguity in the title's wording, the ambiguity is traceable to the initiative, and we will not interfer with the Title Board's choice of language. Since all legitimate presumptions must be resolved in favor of the Title Board, we affirm the Title Board's action in setting the title, submission clause, and summary for the proposed initiative.
AMENDMENT TO THE COLORADO CONSTITUTION
Amendment to Article IX of the Constitution, Section 17
The general assembly shall enact a law beginning for the school year 1993-94 establishing a Taxpayers' state and county refund account for taxpayers who filed an income tax return and/or paid property taxes. For every student who is counted and funded by the taxpayers' money for each school year, but is no longer attending any public or non-public school in Colorado, school districts shall deposit in state and county Taxpayers' Refund Accounts, as established by the legislature, that portion of
1. To increase accountability by the school districts to the taxpayers for money received for the education of students.
3. To provide an option of schools for parents and students to allow tax money to follow the student to any public or non-public school in Colorado.
4. To prevent school districts from retaining and return to taxpayers monies of students who were funded at a public school and are no longer attending school anywhere.
5[.] To lower the cost of education through increased competition, creating greater diversity in schools, increasing cooperation among public and non-public schools, and providing quality education.
PROPOSED INITIATIVE FOR "EDUCATION TAX REFUND"
The title as designated and fixed by the Board at a rehearing is as follows:
AN AMENDMENT TO THE COLORADO CONSTITUTION TO REQUIRE THE CREATION OF A REFUND ACCOUNT AND TO REQUIRE REFUNDS OF TAXES PAID FOR EDUCATING STUDENTS NO LONGER ATTENDING SCHOOL IN COLORADO; TO REQUIRE THAT STATE AND COUNTY TAXES FOLLOW STUDENTS ENROLLED IN [ANOTHER]
The ballot title and submission clause as designated and fixed by the Board at a rehearing is as follows:
SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION TO REQUIRE THE CREATION OF A REFUND ACCOUNT AND TO REQUIRE REFUNDS OF TAXES PAID FOR EDUCATING STUDENTS NO LONGER ATTENDING SCHOOL IN COLORADO; TO
The summary prepared by the Board at a rehearing is as follows:
This measure requires the enactment of a law which establishes, beginning in the 1993-94 school year, a state and county refund account for taxpayers who filed income tax returns or paid property taxes. State and county taxes paid for students who were counted and funded for a school year but are no longer attending school in Colorado are required to be refunded to taxpayers through such refund accounts.
The measure mandates that state and county tax moneys received by a school district follow a student to any public or non-public school of option in the same school district. It also requires that the state share of school finance moneys follow a student to any public or non-public school of option in another school district while the county taxes for such students are refunded to taxpayers within the resident school district.
This measure requires the State Department of Education to keep records concerning the number of students funded in Colorado public schools who transferred: 1) To another public school within the same school district or within a different school district; 2) to a non-public school; or 3) out of the state. The measure supersedes the constitutional prohibition against governmental aid to private schools or churches or for sectarian purposes to the extent the measure conflicts with said prohibition.
The total amount of the fiscal impact of the entire measure is indeterminate. Because of school dropouts, school districts could lose between $3 million and $20 million dollars annually. The reporting requirements would cost the state $1.25 million dollars annually.
Second, during the hearing that followed, the Title Board listened to and incorporated Koch's suggestions for improving the title and the submission clause. At the end of the hearing, Slaughter recited the substantially changed submission clause, then Pike asked, "With that rather lengthy motion, Mr. Koch[,] any thoughts on that[?]" Koch responded, "Okay." After voting to adopt the new wording, Pike asked, "[D]o you have any last thoughts for us, Mr. Koch[?]" Koch said, "I guess the only though[t] I had is that its—I feel it's at least better than what it was." This last equivocal statement is the only hint that Koch was dissatisfied with the Title Board's action.
In sum, despite the fact that the board specifically stated that it was granting Koch's motion for rehearing and despite the fact that Koch was apparently in agreement with the board action, the board characterized its ruling as appealable to this court.