Colorado Single-Subject Rule: Redefining “Fee” Statewide Is a Separate Subject from Requiring Voter Approval of High-Revenue Fees (Initiative #158)

1. Introduction

This Colorado Supreme Court decision addresses whether Proposed Initiative 2025-2026 #158 (“Initiative #158”) complied with Colorado’s constitutional and statutory single subject requirement for citizen initiatives. The petitioner, Joshua Mantell, challenged the Title Board’s approval of a title for a measure advanced by proponents Michael Fields and Suzanne Taheri.

Initiative #158 sought to amend TABOR (Colo. Const. art. X, § 20) by (1) requiring statewide voter approval beginning January 1, 2027 for certain high-revenue “fees” imposed by state law and (2) redefining “fee” as used in Colorado law for both “any existing or new ‘fee’” imposed by the state or local governments/special districts. The core dispute was whether these provisions were “necessarily and properly connected” as one subject—or instead constituted two distinct purposes packaged together.

2. Summary of the Opinion

The Court (Chief Justice Márquez writing for a unanimous en banc Court) held that Initiative #158 violates the single subject requirement in Colo. Const. art. V, § 1(5.5) and § 1-40-106.5, C.R.S. (2025). The measure impermissibly combined:

• Subject 1: a new statewide voter-approval requirement for certain fees over a $100 million five-year revenue threshold (including aggregation rules); and
• Subject 2: a sweeping redefinition of “fee” applicable across Colorado law to “any existing or new ‘fee.’”

The Court reversed the Title Board’s actions and remanded with directions to strike the title, ballot title, and submission clause and return the initiative to its proponents.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Holding)

A. TABOR background and the tax/fee line (context, not the dispositive issue)

• Havens v. Bd. of Cnty. Comm'rs, 924 P.2d 517 (Colo. 1996): cited to frame TABOR’s role in limiting taxing/spending powers and requiring voter approval for “new tax,” “tax rate increase,” and certain tax policy changes. The case provides the constitutional backdrop for why the “tax” vs. “fee” classification is high-stakes.
• Barber v. Ritter, 196 P.3d 238 (Colo. 2008): the Court used Barber to summarize the judicially developed test: a charge is a “tax” if primarily for general governmental expenses, and a “fee” if primarily to defray the cost of services provided to those charged. The opinion later relies on this existing case-law framework to reject the claim that Initiative #158’s voter-approval provisions would be “unenforceable” without redefining “fee.”
• Colo. Union of Taxpayers Found. v. City of Aspen, 2018 CO 36, 418 P.3d 506: cited for the “comprehensive regulatory scheme” concept and the requirement that fees bear a reasonable relationship to costs. This reinforced that Colorado already has a functioning, administrable definition of “fee.”
• Griswold v. Nat'l Fed'n of Indep. Bus., 2019 CO 79, 449 P.3d 373: cited alongside Colo. Union of Taxpayers Found. to confirm the modern articulation of the fee doctrine.
• Bloom v. City of Fort Collins, 784 P.2d 304 (Colo. 1989), and Tabor Found. v. Colo. Bridge Enter., 2014 COA 106, 353 P.3d 896: cited for the “reasonable relationship” principle and to clarify that a fee can be valid even if individual usage varies, so long as those charged are reasonably likely to benefit.

Role in this case: These authorities did not determine whether Initiative #158’s policy was wise or constitutional on the merits. They mattered because they demonstrated that Colorado’s existing “fee” jurisprudence is coherent and usable—undercutting proponents’ argument that redefining “fee” was necessary for the new voter-approval threshold to operate.

B. Single-subject doctrine and initiative-title review (the dispositive framework)

• In re Title, Ballot Title & Submission Clause for 2015-2016 #132, 2016 CO 55, 374 P.3d 460: supplied the Court’s central analytic structure: presumptions favor the Title Board, the Court conducts limited review, and an initiative violates single subject when it contains “at least two distinct and separate purposes.” The Court also drew on #132’s warning against “significant change” provisions beyond an initiative’s central purpose.
• In re Title, Ballot Title & Submission Clause for 2011-2012 #3, 2012 CO 25, 274 P.3d 562: cited (via #132) for the “necessarily and properly connected” test.
• In re Proposed Initiative "Pub. Rts. in Waters II", 898 P.2d 1076 (Colo. 1995): cited for the principle that each proposal must “depend upon its own merits for passage,” a foundational anti-logrolling rationale.
• In re Title, Ballot Title & Submission Clause for 2013-2014 #76, 2014 CO 52, 333 P.3d 76: cited for logrolling concerns (often when multiple constituencies might be assembled behind different components).
• In re Title, Ballot Title & Submission Clause for Proposed Initiative 2001-2002 #43, 46 P.3d 438 (Colo. 2002): cited for the “surprise” principle—preventing a “surreptitious provision ‘coiled up in the folds’ of a complex initiative.”
• In re Title, Ballot Title & Submission Clause for 2013-2014 #90, 2014 CO 63, 328 P.3d 155: cited for the formulation that single subject is violated when there are “two distinct and separate purposes.”
• In re Title, Ballot Title & Submission Clause & Summary for 1999-2000 #256, 12 P.3d 246 (Colo. 2000): quoted (through later cases) for the “tends to effect or carry out one general objective or purpose” standard.
• In re Title, Ballot Title & Submission Clause for 2013-2014 #129 ("Initiative #129"), 2014 CO 53, 333 P.3d 101: the pivotal comparator. The Court previously held that the identical “fee” redefinition—standing alone—constituted a single subject because it had one objective: changing the definition of “fee.” That prior holding allowed the Court here to characterize Initiative #158 as “Initiative #129 plus” an additional subject.

3.2 Legal Reasoning

The Court applied established single-subject doctrine with two key moves:

1. It isolated the “fee” redefinition as an independent purpose. The Court treated the redefinition provision as sweeping and not merely definitional “machinery” for the voter-approval threshold. It emphasized that Initiative #158’s redefinition applies to “any existing or new ‘fee’” as used in Colorado law, without the prospective effective-date limitation that the initiative expressly included for subsections (4.5)(a) to (c). In practical terms, that raised the prospect of reclassifying “countless existing fees” and potentially pulling them into TABOR’s voter-approval regime.
2. It rejected “necessity” as the connector between the provisions. Proponents argued the measure would be “unenforceable and meaningless” without the new definition. The Court found that unpersuasive because existing case law (e.g., Barber v. Ritter) already supplies a workable definition of “fee” that could be used to apply the new aggregation and statewide-vote requirements. Therefore, the redefinition was not “necessary” to effectuate the new voter-approval mechanism.

With those premises, the Court concluded that Initiative #158 contained “two distinct and separate purposes”: imposing voter approval for certain high-revenue fees and redefining “fee” across Colorado law (including existing fees). That combination triggers both single-subject concerns: logrolling (assembling different constituencies behind different provisions) and voter surprise (a major, potentially retroactive definitional change “coiled up in the folds” of a measure framed around voter approval).

Notably, the Court stressed it was not condemning the policy of redefining “fee.” To the contrary, it reiterated that a “change the definition of ‘fee’” initiative, by itself, can satisfy single subject (as Initiative #129 did). The problem was bundling that discrete project with a separate statewide voter-approval regime.

3.3 Impact

The decision meaningfully tightens how proponents must structure TABOR-adjacent initiatives involving “fees”:

• Packaging rule clarified: A measure that both (i) creates a new voter-approval requirement for fees and (ii) redefines “fee” broadly for all of Colorado law will likely be treated as containing multiple subjects unless the definition is truly ancillary and narrowly tailored to the operative provisions.
• Initiative drafting consequence: Proponents seeking both reforms will need to run separate initiatives (one for a definitional overhaul; one for a voter-approval threshold), or narrow any definitional language to what is demonstrably required to implement the voting rule (and likely constrain its temporal reach).
• Retroactivity sensitivity: Even without deciding retroactivity as a merits question, the Court’s single-subject analysis signals heightened scrutiny when initiatives appear to alter legal classifications for “existing” governmental charges while marketing the measure around prospective election requirements.
• Title Board guidance: The Title Board must remain attentive not only to whether a title discloses multiple components, but also whether those components are improperly combined under the single-subject doctrine—even if the title attempts to disclose them.

4. Complex Concepts Simplified

• TABOR: Colorado’s constitutional rules requiring voter approval for certain government revenue measures (especially taxes and tax increases).
• Tax vs. fee (Colorado doctrine): A “tax” primarily funds general government; a “fee” primarily pays for a service or regulatory program benefiting/relating to those charged, and must be reasonably related to costs.
• Single subject requirement: A citizen initiative can do only one “general objective or purpose.” Details are allowed if they are “necessarily and properly connected” to that one objective.
• Logrolling: Combining separate proposals so voters must accept something they dislike to get something they like.
• “Coiled up in the folds”: A metaphor for hiding a major secondary change inside a measure whose headline purpose appears different.
• Prospective vs. retroactive effect: “Prospective” applies only to future actions. Here, the initiative made the voter-approval requirement prospective, but its redefinition of “fee” applied to “any existing or new” fee—raising the possibility of changes to already-existing charges.
• Aggregation: The initiative required adding together (“aggregating”) certain fees funding “similar subjects or purposes” across a multi-year window to determine whether the $100 million threshold is met.

5. Conclusion

In the MATTER OF the TITLE, BALLOT TITLE, AND SUBMISSION CLAUSE FOR PROPOSED INITIATIVE 2025-2026 #158 establishes a practical boundary for Colorado initiative drafting: a statewide redefinition of “fee” applicable across Colorado law—especially to existing fees—is a distinct subject that cannot be bundled with a separate policy of requiring statewide voter approval for certain high-revenue fees.

By treating the definitional change as an independent objective (as it had in In re Title, Ballot Title & Submission Clause for 2013-2014 #129 ("Initiative #129")), the Court reinforced the anti-logrolling and anti-surprise purposes of the single-subject requirement and provided clear guidance: if proponents want both reforms, they must present them to voters as separate questions.