Update: The Independence Institute and the League of Women Voters of Colorado have requested a rehearing at the title board.
By Jeffrey A. Roberts
CFOIC Executive Director
A state board on Wednesday declined to set the title for a proposed fall ballot initiative that would enshrine in the Colorado Constitution “a fundamental right to know the affairs of all levels of state and local government.”
Title Board Chair Theresa Conley said Initiative #286, proposed by Jon Caldara of the Independence Institute and Beth Hendrix of the League of Women Voters of Colorado, is too broad and therefore doesn’t meet the statutory and constitutional requirement that initiative titles concern a single subject.
Signature gathering for a ballot petition cannot begin unless a ballot title and a petition form are approved.
“Voters don’t know what they’re voting yes or no on,” Conley told Caldara and Hendrix. She said there are no protections in the proposal for law enforcement and the attorney-client privilege, “and this seems not just about open meetings and open records but also about information and knowledge that is beyond public documents.”
The transparency measure, 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 comes after the legislature exempted itself from portions of the Colorado Open Meetings Law, which the voters of Colorado enacted in 1972, and lawmakers tried for a third consecutive year to weaken the Colorado Open Records Act (CORA).
Caldara told the title board the measure is about access to public records and the deliberations of government bodies … We’re trying to create a very broad-based, fundamental right that will be clarified by the legislature and by the courts.”
“Broadness of an amendment in the Bill of Rights is kind of the purpose of that,” he added, responding to Conley. “We have a right to free speech — that is awfully broad. There’s a right to keep and bear arms —that’s awfully broad. We build laws and court cases around those broad principles.”
Board member Kurt Morrison said “the struggle is how to tell the voters (a proposal) may mean one through 30 things and it may mean none of those things. We don’t know because we’ve got to wait for the courts to figure it out.”
Adding the right to know to the constitution as a “fundamental right” — like free speech and a free press — would give it more weight because fundamental rights have a higher degree of protection from government interference.
The proposal submitted by Caldara and Hendrix 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.
It includes sanctions: Any state or local government that knowingly violates the provisions would be subject to a civil penalty of at least $1,000 for each violation.
At least eight state constitutions, including those of Montana and California, expressly mention the right to inspect government documents or attend government meetings, or both.
The title board’s 2-1 vote to deny a title isn’t necessarily the end of the proposal. The proponents could file a motion for a rehearing by April 22.
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