By Jeffrey A. Roberts
CFOIC Executive Director
The Colorado Title Board on Friday again rejected a proposed state constitutional right-to-know initiative for the fall ballot, still maintaining it doesn’t meet a single-subject requirement.
The rehearing vote against setting a title for Initiative #286 was 2-1, as it was on April 15 after an initial hearing. The two members in opposition reiterated their concerns about the broadness of the measure.
“The scope of this is hard to put into a question for the voters to understand,” said board chair Theresa Conley of the secretary of state’s office. “It’s really hard to figure out exactly how much this is changing the status quo,” she added. “That is generally what we try and capture.”
Brett Lilly, an attorney for proponents Jon Caldara of the Independence Institute and Beth Hendrix of the League of Women Voters of Colorado, said the question for voters would be “a simple yes or no — are you creating a fundamental right or not?” The creation of that right — the right to know the affairs of government — is the single subject, he told title board members.
Signature gathering for a ballot petition cannot begin unless a ballot title and a petition form are approved. Caldara and Hendrix could ask the Colorado Supreme Court to review the title board’s decision.
Their proposal, which would amend the state constitution’s Bill of Rights, is the product of several months’ work by a diverse alliance of groups that also includes the Colorado Freedom of Information Coalition, Colorado Common Cause, the Colorado Broadcasters Association, the Colorado Press Association and the American Civil Liberties Union of Colorado.
It declares that “because all political power is vested in and derived from the people, and by right all government originates from the people … the people have a fundamental right to know the affairs of all levels of state and local government.” And because the General Assembly and other governing bodies and officials in Colorado “have infringed on the fundamental right to know,” access to public proceedings and public records must be guaranteed.
The legislature in 2024 exempted itself from portions of the Colorado Open Meetings Law, which the voters of Colorado enacted in 1972, and lawmakers this session tried for a third consecutive year to weaken the Colorado Open Records Act (CORA).
Arguing that Initiative #286 does fit the single-subject requirement for ballot initiatives, Lilly cited Kemper v. Leahy, a 2014 ruling in which the Colorado Supreme Court approved single-subject status for a proposed initiative creating “a public right to Colorado’s environment.”
“By comparison, what we’re saying here is there’s a right of access — a right to know — and that right to know includes access to public records and public meetings,” Lilly said. “… The creation of the fundamental right is just that — it’s a single subject. It’s the right to know. It may be implemented in various ways. That happens to be public meetings, public records.”
Conley said the impact of a fundamental right to know on existing laws — including CORA and the open meetings law — is unknown, making it “hard to put something into words” on the ballot for the voters to understand. “We do need to explain the effect on existing law,” she added. “That is permissible for us.”
Caldara asked title board members if any of the existing rights in Colorado’s Bill of Rights — including inalienable rights, religious freedom, freedom of elections and equality of justice — would “survive the scrutiny you’re giving this.”
“How in the world could anyone bring forward any of these as a constitutional amendment if the judgment of the title board is well, in the application of this, it could be confusing? Yeah, these are all messy, big things,” he said.
Title board member Kurt Morrison, who represents the attorney general’s office, said Caldara raised a question he also has grappled with. “With a lot of those amendments, if we’d had the single-subject requirement imposed upon the framers (of the constitution), I don’t know what the outcome would have been.”
A 1994 referendum added the single-subject rule to the state constitution.
Morrison joined Conley in voting against setting a title for Initiative #268. Board member Christy Chase of the Office of Legislative Legal Services voted in favor.
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