The Role of Legislative Staff in the Initiative Process

Disclaimer: This memorandum contains information commonly requested from the Office of Legislative Legal Services. It does not represent an official legal opinion of the General Assembly or the state of Colorado and does not bind the members of the General Assembly. It is intended to provide a general overview of Colorado law as of the date of its preparation. Any person needing legal advice should consult the person's own lawyer and should not rely on the information in this memorandum.

1. The proponents of an initiative submit the initiative to Legislative Council Staff to begin the initiative process.

The first step in the initiative process¹ is for the proponents of an initiative to file the original, typewritten, and legible draft of the initiative with the directors of the Legislative Council Staff (LCS) and the Office of Legislative Legal Services (Office) for review and comment. The proponents should send the draft by mail or email, or deliver it in person to LCS. The draft should use plain, nontechnical language that is understandable to the average reader.

When the proponents file the initiative with LCS, the proponents must identify the names and mailing addresses of two people who will represent the proponents in all matters affecting the initiative and to whom all notices or information concerning the initiative will be mailed.² These two individuals are referred to as the "designated representatives" of the proponents.

2. Legislative staff conduct a review and comment meeting about the initiative with the designated representatives.

LCS and Office staff (staff) prepare a "review and comment" memorandum and conduct a public meeting two weeks after the proponents submit the initiative, unless the proponents withdraw the initiative. In the memorandum and at the meeting, staff ask the designated representatives questions and make comments that are designed to clarify the language of the initiative and to ensure that the initiative's language reflects the designated representatives' intent.

Both designated representatives must attend the review and comment meeting in person, and if one or both fail to do so, the initiative is deemed withdrawn. If one of the designated representatives attends the meeting but the other does not, the initiative is deemed automatically resubmitted and is rescheduled for a review and comment meeting no later than five business days after the resubmission, unless the attending designated representative objects to the automatic resubmission. Discussion between designated representatives or their legal representatives and staff is encouraged during review and comment meetings, but public testimony by any other person is not permitted. The proponents of the initiative may, but are not required to, amend the initiative in direct response to the comments. If the proponents make substantial amendments to the initiative that are not in direct response to comments made by staff in the review and comment memorandum or meeting, the proponents are required to file an amended initiative with LCS. If the directors of the Office and LCS (directors) determine that staff has additional comments on the resubmitted initiative, there will be another review and comment memorandum and meeting, which will be held two weeks after the proponents file the amended initiative. If the directors determine that staff does not have additional comments, no later than the close of business on the third business day after the proponents file the amended initiative, the directors notify the proponents in writing that there are no further comments and that a public meeting is not required.

3. Staff from the Office of Legislative Legal Services are on the Title Board, which sets the initiative's ballot title.

After the review and comment meeting on an initiative, if the proponents do not have any changes to the initiative, if they make changes in response to the comments, or if they submit an amended initiative and are notified that a review and comment meeting on the amended initiative is not required, the proponents may submit the initiative to the Secretary of State for consideration by the Title Board. The Title Board is composed of the Secretary of State, the Attorney General, and the Director of the Office, or their designees, and its job is to set ballot titles and submission clauses for initiatives for which it has jurisdiction. A ballot title sets forth the subject of the initiative, and the submission clause is the actual question that appears on the ballot for consideration by the voters. The submission clause is the same as the ballot title but is in the form of a question.

The Title Board meets on the first and third Wednesdays of each month to consider setting titles for each proposed law or constitutional amendment submitted at least twelve days before a possible meeting date. The Title Board's first meeting is held no sooner than the first Wednesday in December after a general election, and the last meeting is held no later than the third Wednesday in April in the year in which an initiative is to be voted on.

Prior to the hearing, staff from the Office prepares a ballot title draft. The Title Board typically uses this “staff draft” ballot title as the starting point for its ballot title discussion.

At the hearing, the Title Board first determines if it has jurisdiction to set a ballot title for an initiative. The Title Board's jurisdiction determination requires considering two different questions. First, did the proponents make a substantial change to the initiative after the review and comment hearing and before filing the initiative with the Secretary of State's office? If the answer is yes, and if the change is not in direct response to an issue addressed during the review and comment meeting, the Title Board does not have jurisdiction to set a title. If the proponents did not make a substantial change or if they made a substantial change in direct response to an issue discussed during the review and comment meeting, the Title Board will proceed to the second jurisdictional question: Does the initiative contain more than one subject? If the Title Board determines that the initiative contains multiple subjects, the Title Board lacks jurisdiction to set a ballot title. If the Title Board finds that the initiative contains a single subject, the Title Board makes that finding on the record by approving a motion indicating that the Title Board finds that the initiative has a single subject and that the Title Board has jurisdiction to set a title. Upon approval of that motion, the Title Board proceeds to set a ballot title for the initiative.

4. Legislative Council Staff prepares a fiscal summary.

LCS staff are required to prepare an initial fiscal impact statement for each initiative that is properly submitted to the Title Board. An abstract of this statement will be included in initiative petition sections that proponents use to gather signatures.

For a detailed explanation of the initiative process, see section 1 of article V of the Colorado Constitution, article 40 of title 1, C.R.S., the Initiative Rules of the Legislative Council, the Initiatives and Blue Book Overview page of the Colorado General Assembly website, and the Initiatives and Title Board page of the Secretary of State’s office website.

Footnotes

1. Article V, section 1 (1) of the Colorado Constitution vests the legislative power of the state in the Colorado General Assembly, but "the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly ....” The power reserved by the people to propose laws is called the power of the initiative.

2. Colo. Const. art. V, §1 (2). Note that a citizen-proposed initiative is referred to in the Colorado Constitution, the Colorado Revised Statutes, and the Legislative Council Initiative Rules by various terms, including "initiated measure," "ballot measure," "measure," "initiative petition," "petition," and "draft." To the extent any of those terms are used in the law, rules, and this law summary, the term generally refers to an initiative proposed by citizens pursuant to their rights under section 1 (2) of article V of the Colorado Constitution. For consistency within this law summary, the term "initiative" has generally been used. Also be aware that the term "ballot issue," which may also appear in this law summary or in law, is defined in §1-40-102 (1), C.R.S., to include both a citizen-proposed initiative, as well as a legislatively referred measure.