2026 CO 13, 25SA334, Proposed Ballot Initiative 2025-2026 #158

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
March 9, 2026

# 2026 CO 13

No. 25SA334, In re Title, Ballot Title & Submission Clause for Proposed Initiative
2025-2026 #158 -Single Subject.

The supreme court holds that Initiative #158 encompasses multiple subjects
in violation of article V, section 1(5.5) of the Colorado Constitution and section
1-40-106.5, C.R.S. (2025). Initiative #158 violates the single subject requirement by
combining voter approval requirements for certain fees with a change to the
definition of any existing or new "fee" as that term is used in Colorado law. The
court therefore reverses the actions of the Title Board and remands this matter to
the Board with directions to strike the title, ballot title, and submission clause, and
to return the Initiative to its Proponents.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 13

Supreme Court Case No. 25SA334
Original Proceeding Pursuant to § 1-40-107(2), C.R.S. (2025)
Appeal from the Ballot Title Setting Board

In the Matter of the Title, Ballot Title, and Submission Clause for Proposed
Initiative 2025-2026 #158

Petitioner:

Joshua Mantell,

V.

Respondents:

Michael Fields and Suzanne Taheri,

and

Title Board:

Christy Chase, Kathleen Wallace, and Kurt Morrison.

Title Board Action Reversed
en banc
March 9, 2026

Attorneys for Petitioner:

Tierney Lawrence Stiles LLC

Edward T. Ramey

Denver, Colorado

Attorneys for Respondents:

West Group Law & Policy

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Suzanne M. Taheri
Englewood, Colorado

Attorneys for Title Board:
Philip J. Weiser, Attorney General
Lily E. Nierenberg, Senior Assistant Attorney General
Denver, Colorado

CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which
JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
SAMOUR, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

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CHIEF JUSTICE MÁRQUEZ delivered the Opinion of the Court.

11 In this original proceeding pursuant to section 1-40-107(2), C.R.S. (2025),
Joshua Mantell ("Petitioner") challenges the actions of the Title Board in setting
the title, ballot title, and submission clause for proposed Initiative 2025-2026 #158
("Initiative #158" or "Initiative").1 We conclude that Initiative #158 encompasses
multiple subjects in violation of article V, section 1(5.5) of the Colorado
Constitution and section 1-40-106.5, C.R.S. (2025). Accordingly, we reverse the
actions of the Title Board.

## I. Background

12
Colorado's Taxpayer's Bill of Rights ("TABOR"), Colo. Const. art. X, § 20,
limits the spending and taxing powers of state and local government. Havens v.
Bd. of Cnty. Comm'rs, 924 P.2d 517, 519-20 (Colo. 1996). Among other things,
TABOR generally requires voter approval of any "new tax, tax rate increase, . . .
extension of an expiring tax, or a tax policy change directly causing a net tax
revenue gain to any district." Colo. Const. art. X, § 20(4)(a). Given TABOR's strict
voter approval requirements, the determination that a particular charge is a "tax"
is consequential. Yet TABOR itself does not define "tax" (or "tax rate increase," or
"tax policy change," for that matter). Instead, the definition of what constitutes a

1 The text and title of Initiative #158 are attached as Appendix A.

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"tax," as well as the distinction between a "tax" and a government-imposed "fee,"
has been developed in case law by Colorado appellate courts. See Griswold v. Nat'l
Fed'n of Indep. Bus., 2019 CO 79, 1 12, 449 P.3d 373, 377; Colo. Union of Taxpayers
Found. v. City of Aspen, 2018 CO 36, 11 26-27, 418 P.3d 506, 513-14; Barber v. Ritter,
196 P.3d 238, 241-42, 249-50 (Colo. 2008); Tabor Found. v. Colo. Bridge Enter., 2014
COA 106, TT 21-26, 39-42, 353 P.3d 896, 901, 903.

13 The distinction that has developed in Colorado case law between a tax and
a fee is important, as fees are not (presently) subject to TABOR's voter approval
requirements. Under that case law, a charge is a "tax" if its primary purpose is to
defray general governmental expenses. Barber, 196 P.3d at 249. A charge that only
incidentally or indirectly defrays general governmental expenses or raises revenue
is not necessarily a tax. Id. at 249-50.

14 By contrast, a charge is a "fee" if "its primary purpose is to defray the cost
of services provided to those charged." Id. at 250.

[I]f a charge is imposed as part of a comprehensive regulatory
scheme, and if the primary purpose of the charge is to defray the
reasonable direct and indirect costs of providing a service or
regulating an activity under that scheme, then the charge is not
raising revenue for the general expenses of government, and
therefore, not a tax.

Colo. Union of Taxpayers Found., 1 26, 418 P.3d at 513; see also Griswold, 1 12, 449 P.3d
at 377. A fee must bear a reasonable relationship to the cost of services provided.
Colo. Union of Taxpayers Found., 1 27, 418 P.3d at 514; see also Bloom v. City of Fort

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Collins, 784 P.2d 304, 310-11 (Colo. 1989); Tabor Found., 11 40, 42, 353 P.3d at 903
(holding that a charge is a fee "as long as [the] charge is reasonably related to the
overall cost of providing the service and is imposed on those who are reasonably
likely to benefit from or use the service," irrespective of the actual and direct
individual usage of that benefit).

## II. Facts and Procedural History

15
Twelve years ago, we considered a ballot initiative that sought to narrow
the definition of "fee" under Colorado law. See In re Title, Ballot Title & Submission
Clause for 2013-2014 #129 ("Initiative #129"), 2014 CO 53, TT 16-19, 333 P.3d 101,
105. Initiative #129 sought to amend TABOR by redefining "fee" as "a voluntarily
incurred governmental charge in exchange for a specific benefit conferred on the
payer, which fee should reasonably approximate the payer's fair share of the costs
incurred by the government in providing said specific benefit." Id. at | 3, 333 P.3d
at 103. This proposed definition applied to "fee" "as used in the Colorado
Constitution, Colorado Revised Statutes, Codes, Directives, and all Public
Colorado Legal Documets [sic]." Id. (error in the text of Initiative #129). We
upheld the Title Board's setting of title for Initiative #129, reasoning that despite
the broad applicability of the proposed changed definition of "fee," the initiative
did not violate the single subject requirement. Id. at [1 2, 16-19, 333 P.3d at 103,

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105\. Although the title was set for Initiative #129, the measure ultimately did not
proceed to the ballot.

16 In this case, Michael Fields and Suzanne Taheri ("Proponents") are the
designated proponents of Initiative #158, which they seek to place on the ballot for
the 2026 general election. Proponents assert that the single subject of Initiative
#158 is to "require voter approval of certain fees." Initiative #158 would add a
new subsection (4.5) to TABOR entitled "Voter approval of fees." This new
subsection would require voter approval of certain fees imposed by state law
(unless charged by an institution of higher education) and would redefine any
existing or new "fee" as that term is "used in Colorado law."

17 Specifically, subsection (4.5)(a) of the proposed amendment provides that,
starting on January 1, 2027, voter approval at a statewide election would be
required for any fee established or increased with projected or actual revenue
totaling over $100,000,000 in the first five fiscal years. Subsection (4.5)(a) also sets
forth specific language to be included in the ballot titles presented to voters. To
calculate whether the projected or actual revenue of a fee would meet the
threshold to trigger the statewide voter approval requirement, subsection (4.5)(b)
requires the aggregation of fees collected to fund "similar subjects or purposes
created or increased in the same calendar year or within the five preceding years."

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Subsection (4.5)(c) excludes fees charged by institutions of higher education from
the statewide voter approval requirements.

18 Next, subsection (4.5)(d) redefines "'[f]ee' as used in Colorado law" to mean
"a voluntarily incurred governmental charge in exchange for a specific benefit
conferred on the payer, which fee should reasonably approximate the payer's fair
share of the costs incurred by the government in providing said specific benefit."
This language is identical to the definition proposed twelve years ago in Initiative
#129.2 In re 2013-2014 #129, 1 3, 333 P.3d at 103. Although the voter approval
provisions of Initiative #158 apply only prospectively, the proposed new
definition of "fee" is not so limited. The title set for the Initiative states that it
would "define any existing or new 'fee,"" and the parties do not dispute this.
(Emphasis added.)

19
Through this proposed amendment to TABOR, Initiative #158 would make
substantial changes to the definition of "fee" throughout Colorado law. Under
current case law, for example, a fee must simply defray the cost of services
provided to those charged. Barber, 196 P.3d at 241-42. But under the proposed

2 Although Initiative #129 applied to "the Colorado Constitution, Colorado
Revised Statutes, Codes, Directives, and all Public Colorado Legal Documets
[sic]," In re 2013-2014 #129, 1 3, 333 P.3d at 103 (error in the text of Initiative #129),
Initiative #158's broad phrasing "as used in Colorado law" is not meaningfully
different in scope. As relevant here, the proposed change to the definition of "fee"
is identical in both initiatives.

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new constitutional definition, to qualify as a fee, a charge would have to be
"voluntarily incurred" in exchange for a "specific benefit conferred on the payer."
And while the judicially developed definition of a "fee" merely requires the charge
to bear a reasonable relationship to the cost of services provided, Colo. Union of
Taxpayers Found., 1 27, 418 P.3d at 514, the proposed new definition would require
that the charge "reasonably approximate the payer's fair share of the costs." In
short, the proposed new constitutional definition significantly narrows the types
of charges that currently qualify as a "fee."

110 On October 3, 2025, Proponents submitted a final version of Initiative #158
to the Secretary of State. On October 15, 2025, the Title Board conducted a hearing
for the Initiative and set the title in accordance with section 1-40-106(1), C.R.S.
(2025). On October 22, 2025, Petitioner filed a motion for rehearing, arguing that
the Initiative violated the single subject requirement and that the title failed to
describe important aspects of the measure. In relevant part, Petitioner argued that
changing the definition of "fee" as it is "used in Colorado law" without an effective
date could have the unintended effect of retroactively nullifying existing fees,
superseding judicial precedent, and overriding the public's understanding of what
constitutes a "fee."

111 Following a rehearing on November 5, 2025, the Title Board concluded that
the Initiative contained a single subject but modified the title in response to

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concerns raised by Petitioner. Specifically, the Title Board added language
explaining that the definition of "fee" applies to "any existing or new 'fee'
authorized by Colorado law and imposed by the state or any local government or
special district." (Emphasis added.) Following the rehearing, the title set for
Initiative #158 states:

An amendment to the Colorado Constitution creating new law that
requires statewide voter approval for certain fees imposed by state
law, and, in connection therewith, amending the Taxpayer's Bill of
Rights to: Require statewide voter approval for any such new or
increased fee if the first five fiscal years' projected or actual combined
revenue from the fee, and other fees collected to fund similar
purposes, is greater than $100 million, excluding institutions of higher
education fees; and define any existing or new "fee" authorized by
Colorado law and imposed by the state or any local government or
special district as a governmental charge voluntarily paid in exchange
for a specific benefit.

112 Petitioner now challenges the Title Board's actions under section
1-40-107(2). Petitioner contends that the Title Board erred in setting the title
because the Initiative contains multiple subjects in violation of article V, section
1(5.5) of the Colorado Constitution and section 1-40-106.5. Specifically, Petitioner
argues that the Initiative contains two subjects: (1) requiring statewide voter
approval for certain fees and (2) substantively changing the definition of "fee" for
both new and existing government charges.

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## III. Standard of Review

113 In reviewing Title Board decisions, "we employ all legitimate presumptions
in favor of the propriety of the Board's actions." In re Title, Ballot Title & Submission
Clause for 2015-2016 #132, 2016 CO 55, 1 10, 374 P.3d 460, 464 (quoting In re Title,
Ballot Title & Submission Clause for 2011-2012 #3, 2012 CO 25, 1 6, 274 P.3d 562,
565). Only in a clear case will we overturn the Title Board's finding that an
initiative contains a single subject. Id.

114 Because our review of the Title Board's actions is limited, we do not address
the merits of a proposed initiative or suggest how it might be applied if enacted.
Id. at | 11, 374 P.3d at 464. However, we do examine its wording to determine
whether the proposed initiative comports with the single subject and clear title
requirements. Id. As we conduct this limited review, we employ the general rules
of statutory construction and give words and phrases their plain and ordinary
meanings. Id.

## IV. Analysis

### A. The Single Subject Requirement

115 In Colorado, "every constitutional amendment or law proposed by
initiative" must be "limited to a single subject, which shall be clearly expressed in
its title." § 1-40-106.5(1)(a); see also Colo. Const. art. V, § 1(5.5) ("No measure shall

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be proposed by petition containing more than one subject, which shall be clearly
expressed in its title . . . . ").

116 The single subject requirement serves two functions. First, it "ensure[s] that
each proposal depends upon its own merits for passage." In re 2015-2016 #132,
[ 13, 374 P.3d at 465 (quoting In re Proposed Initiative "Pub. Rts. in Waters II,"
898 P.2d 1076, 1078 (Colo. 1995)); see also § 1-40-106.5(1)(e)(I) (explaining that the
single subject requirement "forbid[s] the treatment of incongruous subjects in the
same measure . .. for the purpose of enlisting in support of the measure the
advocates of each measure, and thus securing the enactment of measures that
could not be carried upon their merits"). In other words, the single subject
requirement prevents proponents from engaging in "log rolling" tactics:
combining multiple subjects in hopes of attracting support from various factions
with different or conflicting interests. In re 2015-2016 #132, 1 13, 374 P.3d at 465
(quoting In re Title, Ballot Title & Submission Clause for 2013-2014 #76, 2014 CO 52,
1 32, 333 P.3d 76, 85).

117 Second, the single subject requirement "prevent[s] surprise and fraud from
being practiced upon voters." § 1-40-106.5(1)(e)(II). It seeks to stop the
"inadvertent passage of a surreptitious provision 'coiled up in the folds' of a
complex initiative." In re 2015-2016 #132, 1 14, 374 P.3d at 465 (quoting In re Title,

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Ballot Title & Submission Clause for Proposed Initiative 2001-2002 #43, 46 P.3d 438,
442 (Colo. 2002)).

118 An initiative satisfies the single subject requirement when it tends to effect
or carry out one general objective or purpose. Id. at | 15, 374 P.3d at 465. While
the initiative may include minor provisions necessary to effectuate its general
objective or purpose, the subject matter of the initiative must be "necessarily and
properly connected rather than disconnected or incongruous." Id. (quoting In re
2011-2012 #3, 1 9, 274 P.3d at 565).

119 Conversely, an initiative violates the single subject requirement when it
"relates to more than one subject and has at least two distinct and separate
purposes." Id. at [ 16, 374 P.3d at 465 (quoting In re Title, Ballot Title & Submission
Clause for 2013-2014 #90, 2014 CO 63, 1 11, 328 P.3d 155, 159). It does not matter
if the initiative's purposes relate to the same general concept or subject, or if its
provisions can be grouped under an overarching theme; an initiative that is
susceptible to log rolling or that risks misleading voters will not satisfy the single
subject requirement. See id.

## B. Proposed Initiative #158 Violates the Single Subject Requirement

120 Petitioner argues that the new definition of "fee" is a surreptitious second
subject "coiled in the folds" of Initiative #158. Petitioner contends that adopting a
significantly narrower definition of "fee" to be used throughout Colorado law and

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applicable to both existing and new fees is not necessary to create a new voter
approval requirement for certain fees. As such, Petitioner argues, Initiative #158
hides a second subject from unwary voters. Petitioner also notes that some
advocates of fiscal constraint view the current judicially developed distinction
between taxes and fees as "a TABOR loophole in dire need of a remedy." Opening
Brief for Petitioner at 8. In other words, Petitioner identifies a constituency
interested specifically in narrowing the definition of "fee," suggesting a concern
that this aspect of the Initiative invites log rolling.

121 Proponents counter that Initiative #158 contains only one subject because its
central purpose is to require voter approval of certain fees, and defining "fee" is
necessary to effectuate that purpose. They assert that "[w]ithout the new
definition, the voter approval requirement embedded in the [I]nitiative would be
unenforceable and meaningless." Answer Brief for Respondents at 3. We are
unpersuaded.

122 Instead, we agree with Petitioner that the redefinition of "fee" in this
Initiative is neither necessarily nor properly connected to its purpose of requiring
voter approval of fees. Rather, this Initiative proposes a significant-and
retroactive - change to the definition of all fees under Colorado law, separate and
apart from any voter approval requirement.

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[23 Despite Proponents' contentions, changing the current definition of "fee" is
not necessary to effectuate the purpose of this Initiative. We see no reason, and
Proponents do not explain, why the voter approval requirement would be
unenforceable and meaningless without the proposed new definition of "fee." If
the definitional provision were removed, then the current judicially developed
understanding of "fee" would still give full effect to the aggregation and voter
approval provisions. See, e.g., Barber, 196 P.3d at 250 ("[A] charge is a 'fee,' .. .
when the express language of the charge's enabling legislation explicitly
contemplates that its primary purpose is to defray the cost of services provided to
those charged.").

124 Importantly, we have previously held that changing the current definition
of "fee" is a subject unto itself. In In re 2013-2014 #129, we considered a definition
identical to the one before us today. There, we held that "Initiative #129 'tends to
effect or carry out one general objective or purpose' -that is, changing the
definition of 'fee."" In re 2013-2014 #129, 1 17, 333 P.3d at 105 (quoting In re Title,
Ballot Title & Submission Clause & Summary for 1999-2000 #256, 12 P.3d 246, 253
(Colo. 2000)). The identical change to the definition of "fee" to be "used in
Colorado law" incorporated into Initiative #158 thus presents one objective or
purpose. See id. Initiative #158, however, plainly presents a second purpose:
requiring statewide voter approval of certain fees. Put succinctly, Initiative #158

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is Initiative #129 plus a new voter approval requirement. As a result, Initiative
#158 presents a danger of log rolling because it may attract a "yes" vote from
voters who support statewide voter approval of fees, but who would not support
narrowing the definition of existing and new fees under Colorado law.
Conversely, it could attract support from voters who support changing the
existing definition of "fee" throughout Colorado law, but who would not support
a new statewide voter approval requirement for certain fees.

125 Finally, we have previously expressed concern about initiatives that
propose to make significant changes beyond their central purpose. In re 2015-2016
#132, TT 17, 19, 374 P.3d at 465-66 (explaining that the initiatives violated the
single subject requirement by "propos[ing] a significant change to the mission and
role of the existing Supreme Court Nominating Commission" when their central
purpose was "redistricting in Colorado"). Here, the proposed new constitutional
definition of "fee" significantly narrows the types of charges that currently qualify
as a "fee," potentially triggering the reclassification of countless existing fees
under Colorado law and rendering some no longer exempt from TABOR.3 These
significant changes are not necessarily connected to Proponents' stated central

3 We do not opine on how, precisely, this proposed new definition would apply to
existing fees if enacted. We must, however, examine the wording of this Initiative
to ensure it complies with the single subject requirement. See In re 2015-2016 #132,
T 11, 374 P.3d at 464.

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purpose of Initiative #158, which is to prospectively require voter approval of fees
that exceed a certain revenue threshold.

126 To be clear, we take no issue with an initiative that seeks to change the
judicially developed definition of "fee" under Colorado law. Indeed, we have held
that such an objective, alone, does not violate the single subject requirement. In re
2013-2014 #129, 1 19, 333 P.3d at 105. But Initiative #158 impermissibly combines
that objective with the additional objective of imposing new statewide voter
approval requirements for certain fees.

127 Because narrowing the definition of "fee" under all of Colorado law is not
necessary or proper to create a voter approval requirement for fees, Initiative #158
runs the risk of surprising voters with a surreptitious, significant change to the
definition of "fee" in Colorado. This proposed change is an impermissible second
subject "coiled up in the folds" of its proposal. In re 2015-2016 #132, 1 26, 374 P.3d
at 467 (quoting In re 2013-2014 #76, 1 32, 333 P.3d at 85).

128 In sum, we agree with Petitioner that Initiative #158's change to the
definition of any existing or new "fee" as that term is used in Colorado law
constitutes an impermissible second subject in violation of article V, section 1(5.5)
of the Colorado Constitution.

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## V. Conclusion

129 Initiative #158 violates the single subject requirement by combining voter
approval requirements for certain fees with a change to the definition of any
existing or new "fee" as that term is used in Colorado law. Accordingly, we
reverse the actions of the Title Board and remand this matter to the Board with
directions to strike the title, ballot title, and submission clause, and to return the
Initiative to its Proponents.

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## APPENDIX A -Initiative #158 and Title

Be it Enacted by the People of the State of Colorado:

SECTION 1. In the constitution of the state of Colorado, section 20 of article X,
add (4.5) as follows:

Section 20. The taxpayer's bill of rights.

### (4.5) Voter approval of fees.

(a) ON OR AFTER JANUARY 1, 2027, ANY FEE IMPOSED BY STATE LAW ESTABLISHED OR
INCREASED WITH A PROJECTED OR ACTUAL REVENUE OF OVER $100,000,000 TOTAL IN
THE FIRST FIVE FISCAL YEARS MUST BE APPROVED AT A STATEWIDE ELECTION. BALLOT
TITLES FOR SUCH FEES SHALL BEGIN, "SHALL A FEE BE (IMPOSED OR INCREASED) TO
COLLECT REVENUE TOTALING (ESTIMATED FULL DOLLAR COLLECTION FOR FIRST FIVE
FISCAL YEARS) IN ITS FIRST FIVE YEARS . . . ? "

(b) FEES SUBJECT TO THE PROVISIONS OF SUBSECTION (4.5)(a) OF THIS SECTION
COLLECTED TO FUND SIMILAR SUBJECTS OR PURPOSES CREATED OR INCREASED IN THE
SAME CALENDAR YEAR OR WITHIN THE FIVE PRECEDING YEARS SHALL BE AGGREGATED
IN CALCULATING THE APPLICABILITY OF THIS SUBSECTION (4.5).

(c) THE REQUIREMENTS FOR VOTER APPROVAL CONTAINED IN THIS SUBSECTION (4.5)
DO NOT APPLY TO FEES CHARGED BY INSTITUTIONS OF HIGHER EDUCATION.

(d) "FEE" AS USED IN COLORADO LAW MEANS A VOLUNTARILY INCURRED
GOVERNMENTAL CHARGE IN EXCHANGE FOR A SPECIFIC BENEFIT CONFERRED ON THE
PAYER, WHICH FEE SHOULD REASONABLY APPROXIMATE THE PAYER'S FAIR SHARE OF
THE COSTS INCURRED BY THE GOVERNMENT IN PROVIDING SAID SPECIFIC BENEFIT.

(e) SUBSECTIONS (4.5)(a) TO (4.5)(c) OF THIS SECTION APPLY TO A FEE ENACTED OR
INCREASED ON OR AFTER THE EFFECTIVE DATE OF THIS SUBSECTION (4.5).

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### Ballot Title Setting Board

### Proposed Initiative 2025-2026 #158

The title as designated and fixed by the Board is as follows:

An amendment to the Colorado Constitution creating new law that requires
statewide voter approval for certain fees imposed by state law, and, in connection
therewith, amending the Taxpayer's Bill of Rights to: Require statewide voter
approval for any such new or increased fee if the first five fiscal years' projected
or actual combined revenue from the fee, and other fees collected to fund similar
purposes, is greater than $100 million, excluding institutions of higher education
fees; and define any existing or new "fee" authorized by Colorado law and
imposed by the state or any local government or special district as a governmental
charge voluntarily paid in exchange for a specific benefit.

The ballot title and submission clause as designated and fixed by the Board is as
follows:

Shall there be amendment to the Colorado Constitution creating new law that
requires statewide voter approval for certain fees imposed by state law, and, in
connection therewith, amending the Taxpayer's Bill of Rights to: Require
statewide voter approval for any such new or increased fee if the first five fiscal
years' projected or actual combined revenue from the fee, and other fees collected
to fund similar purposes, is greater than $100 million, excluding institutions of
higher education fees; and define any existing or new "fee" authorized by
Colorado law and imposed by the state or any local government or special district
as a governmental charge voluntarily paid in exchange for a specific benefit?