FREQUENTLY ASKED QUESTIONS (F.A.Q.)
FOR PARTIES APPEALING DECISIONS OF THE TITLE BOARD
TO THE COLORADO SUPREME COURT
IN THE 2009 ELECTION CYCLE
The process for getting initiatives on the ballot can be lengthy and complex. This process is governed by the Colorado Constitution
(Article V, Section1) and state statutes (Articles 40 and 41 of Title 1, C.R.S). Comprehensive outlines of these processes have been compiled
by the Colorado Legislative Council http://www.colorado.gov/cs/Satellite/CGA-LegislativeCouncil/CLC/1200536135670, and the Colorado Secretary of State http://www.elections.colorado.gov/DDefault.aspx?tid=175 initiative proponents and opponents are strongly encouraged to consult these resources.
This document presents information in Frequently Asked Questions (F.A.Q.) form about the role of the Colorado Supreme Court in this process.
What is the role of the Colorado Supreme Court in this process?
The court’s review is set by statute, § 1-40-107(2), C.R.S., and is limited to whether the Title Board erred in determining that a proposed initiative contains a single subject or that the title is fair and not misleading. State law does not allow the court any discretion in deciding whether to review appeals of Title Board decisions; it must consider and decide every ballot title appeal that is filed.
Who can appeal to the court?
The relevant statute, § 1-40-107(2), C.R.S., allows any person presenting an initiative petition for which a motion for a rehearing is filed, any registered elector who filed a motion for a rehearing, or any other registered elector who appeared before the Title Board in support of or in opposition to a motion for rehearing who is not satisfied with the ruling of the Title Board upon the motion, to file an appeal with the court. Such person must first request certain required documentation from the Secretary of State: a certified copy of the initiative with the titles and submission clause and a certified copy of the motion for rehearing and the ruling thereon. If the appeal is filed within five days of receiving this documentation, the court will docket the matter, establish a briefing schedule, and prioritize that matter’s disposition.
How does the court decide appeals?
The court decides whether the Title Board erred by considering the written briefs and supporting documentation filed by the parties to the appeal. Oral argument is not held on these appeals. Each Justice on the court carefully considers the written briefs, and then the court as a whole reaches a decision as to how to rule, and why. The court will either affirm the decision of the Title Board, in which case it generally does not issue a written opinion, or it will reverse the Title Board decision, in which case the court must remand the case to the Title Board with instructions, pointing out where the Board was in error.
How long does it take the court to make a decision?
Although the court expedites consideration of ballot title cases and endeavors to decide them as quickly as possible, these cases cannot be decided overnight. The briefing process itself, in which the ballot title proponents and opponents present their arguments to the court, generally takes several weeks. Once briefing is complete, the speed with which the court issues a decision varies, depending on which other matters are currently pending before the court (including matters that also have been designated by state law as requiring priority treatment, such as dependency and neglect cases). Complex ballot title challenges take additional time. Data on the length of time it took to dispose of ballot title appeals from the last election cycle may be found at [INSERT WEB ADDRESS].
The process of crafting an opinion that thoughtfully explains the problems with the Title Board’s decision necessarily takes time. Moreover, sometimes the seven members of the court disagree as to the proper disposition of the matter. When this happens, the Justices in the majority typically circulate several drafts of their written decision, responding to the arguments of their colleagues in dissent. In turn, the dissenting Justices also typically circulate multiple drafts of their dissenting opinions. This give-and-take process allows both sides the opportunity to refine their thinking and issue the clearest and most accurate decisions they can, but it does not lend itself to instantaneous results.
Because the briefing and decision-making process is a somewhat slow and deliberate one, and because there are many steps left in the process after an appeal is decided before a proposed initiative may be placed on the ballot, proponents of initiatives are strongly urged to begin the title process as early as possible.
What is the briefing schedule for appeals?
Due to the short timelines involved in the title-setting process, the court employs an abbreviated, simultaneous briefing schedule, deadlines for which depend on when the Petition for Review of Final Action of Ballot Title Setting Board is filed.
When a Petition for Review is filed before April 29, 2009, simultaneous opening briefs must be filed within 20 days of that filing, and simultaneous answer briefs may then be filed within 20 days after the last timely opening brief is filed. When a Petition for Review is filed between April 30, 2009 and May 15, 2009, simultaneous opening briefs must be filed within 14 days, and simultaneous answer briefs filed within 14 days after the last timely opening brief is filed. Finally, when a Petition for Review is filed on or after May 18, 2009, simultaneous opening briefs must be filed within 5 days, and simultaneous answer briefs filed within 5 days after the last timely opening brief is filed. These deadlines also appear in grid form in the Briefing Schedule Chart that is available online at http://www.courts.state.co.us/Courts/Supreme_Court/Briefing_Schedule.cfm. There will be no oral argument unless ordered by the court. Because of the short timelines involved in Title Board appeals, motions for extensions of time will rarely if ever be granted.
What should be in the Petition for Review?
The Petition for Review should be a brief document identifying the:
- Actions of the Title Board, including important procedural dates
- Issue(s) presented
- Supporting documentation appended to the Petition for Review
- Relief Requested
It is also often useful to the court—and avoids delays—to have a transcription of all Title Board hearings ready to file with the Petition for Review. The easiest way to have such a transcript ready is for the parties to hire a certified court reporter to attend the hearings and prepare such a transcription. The parties can then in their briefs cite, as appropriate, to specific pages and lines within that transcript.
The Petition for Review should not present argument.
The supporting documentation identified in the Petition for Review should be appended and separately indexed. It must include a certified copy of the initiative with the titles and submission clause and a certified copy of the motion for rehearing and the ruling thereon. Additional supporting documents may be included; a transcript of public hearings of the Title Board during which the matter was discussed, prepared by a certified court reporter, is particularly useful and can help to minimize delays. The responding party may file additional supporting documents with its opening brief.
Parties should file an original and 10copies of the Petition for Review and supporting documents, along with a $75 docket fee.
What should the briefs look like?
Except as provided by statute or the court, briefs’ format must conform with Colorado Appellate Rule 28. Each party when filing briefs must file 11 copies of that brief.
The court hears many Title Board appeals, and is familiar with the title process and standard of review. Parties therefore should not spend extensive time in their briefs on these and other introductory or basic matters. Instead, parties are urged to think carefully about the specific core issues in their case, and to focus their arguments on them. A thoughtfully structured and carefully edited brief that concisely and explicitly directs the court’s attention as to why the party contends the Title Board’s decision should be upheld or reversed, presented in a handful of pages, is almost always more persuasive than one which dilutes its potential force by filling the page limits with long-winded and boilerplate recitations of the law, tangential or weak arguments, or rambling, slack prose.
How should the appeal process affect my planning?
By law, proponents have an 18-month window to seek and obtain ballot titles for their initiatives. The absolute last Title Board hearing for the 2009 November election is May 20, 2009, and signatures are due in August. Proponents who wait until late in that cycle may find that they run out of time to bring a proposed title back to the Title Board for reconsideration, or to obtain the necessary signatures. Because of the delays inherent in the process, and because there are many steps left in the process after an appeal is decided before a proposed initiative may be placed on the ballot, proponents of initiatives are strongly urged to begin the title process as early in the 18-month window as possible. In some cases, it may be prudent to wait for the next election cycle to ensure sufficient time to complete the process.
Approved by the Colorado Supreme Court
February ____, 2009