JUSTICE MULLARKEY delivered the Opinion of the Court.

John Outcelt, a registered voter in the State of Colorado, challenges the actions of the initiative title setting board (the Board) in setting the title, ballot title and submission clause (collectively, the title), and summary for the proposed initiatives designated 1997-98 #84 (Initiative #84) and 1997-98 #85 (Initiative #85). Both initiatives would amend article X, section 20, of the Colorado Constitution.

On April 1, 1998, the Board set the title and summary for Initiative #84 and Initiative #85 at a hearing where the Board considered the proposed initiatives. On April 8, 1998, Outcelt filed motions for rehearing. The Board subsequently denied Outcelt's motions for rehearing on April 15, 1998. Pursuant to section 1-40-107(2), 1 C.R.S. (1997), Outcelt then sought this court's review of the Board's actions. Because Initiative #84 and Initiative #85 are nearly identical, we consolidated our review of the Board's actions for both initiatives.

We now hold that Initiative #84 and Initiative #85 contain multiple subjects and therefore violate article 5, section 1(5.5), of the Colorado Constitution. Accordingly, we reverse the Board's actions.

I.

Except for one minor difference, Initiative #84 is identical to Initiative #85. Both Initiative #84 and Initiative #85 seek to amend article X, section 20, of the Colorado Constitution by adding a new paragraph (d) to subsection (8). The new paragraph (d) would lower various state and local taxes and would require the state to replace affected local revenue loss. In addition, under the new paragraph, the state's revenue replacement obligation is subject to all tax and spending limits. The new paragraph (d) under Initiative #84 provides:

A $25 tax cut, increased $25 the next year and then $50 yearly (to $100, $150 . . .), shall lower each tax bill for each 1999 and later district: utility customer tax and franchise charge; vehicle ownership tax; yearly income tax; property tax spent on human and health services, district attorney and assessor offices, libraries, jails, courts, schools, economic development, enterprises, and authorities combined; property tax equal to yearly payments for lease-purchases and school debt; and remaining business personal property tax. The state shall replace affected local revenue monthly within all tax and spending limits, and audit each limit yearly; legal fees and costs shall mandatorily be awarded to successful plaintiffs only; and once a year, the general assembly may delay for one year all or part of the next year's increase in one or more tax cuts, but only if further tax cut or replacement amounts in that next year will leave total remaining state revenue from all sources growing less than $200 million.

The only difference in the new paragraph (d) under Initiative #85 is that a tax cut on "franchise charges" is not included.

Outcelt argues that the initiatives contain several deficiencies and that the Board's actions must therefore be reversed. First, Outcelt asserts that the initiatives contain multiple subjects. Second, Outcelt argues that even if there is only one subject in the initiatives, the title for each initiative does not correctly and fairly express the true intent and meaning of the initiatives. Third, Outcelt contends that by referring to a "tax cut," the titles contain an impermissible catch phrase. Fourth, Outcelt argues that Initiative #84 and Initiative #85 conflict with prior initiatives which this court recently addressed in In re 1997-98 #45, Nos. 98SA44, 98SA45, 98SA46, 98SA47 (Colo. May 26, 1998). Fifth, according to Outcelt, the titles of the initiatives do not conform with article X, section 20(3)(b), of the Colorado Constitution. Finally, Outcelt argues that the fiscal impact statements are incomplete.

We agree with Outcelt that Initiative #84 and Initiative #85 are unconstitutional because they contain multiple subjects. Because the initiatives are invalid on that basis, we need not address Outcelt's additional challenges. See In re 1997-98 #30, No. 97SA319, slip op. at 17-18 (Colo. Mar. 16, 1998) (as modified Apr. 13, 1998) (explaining that because the initiative encompassed more than one subject, the court did not need to address the additional challenges to the initiative); In re Amend TABOR 25, 900 P.2d 121, 123 (Colo. 1995) (holding that the initiative encompassed more than a single subject and declining to address whether the title, ballot title and submission clause, and summary conformed to the requirements of section 1-40-106(3), 1B C.R.S. (1994 Supp.)). Accordingly, we limit our discussion to the multiple subjects contained in the initiatives.

II. A.

Under the Colorado Constitution, initiatives must be limited to a single subject. See Colo. Const. art. V, 1(5.5); In re "Public Rights in Waters II", 898 P.2d 1076, 1078 (Colo. 1995). Article V, section 1(5.5), of the Colorado Constitution provides:

No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any measure which shall not be expressed in the title, such measure shall be void only as to so much thereof as shall not be so expressed. If a measure contains more than one subject, such that a ballot title cannot be fixed that clearly expresses a single subject, no title shall be set and the measure shall not be submitted to the people for adoption or rejection at the polls.

We reviewed the history and purpose of article V, section 1(5.5) in In re "Public Rights in Waters II", 898 P.2d at 1078-79. There, we explained that the single subject requirement "is intended to ensure that each proposal depends upon its own merits for passage," In re "Public Rights in Waters II", 898 P.2d at 1078, and that the requirement "forbids the joining of `incongruous subjects in the same measure.'" Id. (quoting 1-40-106.5(1)(e)(I), 1B C.R.S. (1994 Supp.)). Like the constitutional single subject requirement for bills passed by the General Assembly, the single subject requirement for initiatives prevents an initiative's proponents from joining together "multiple subjects into a single initiative in the hope of attracting support from various factions which may have different or even conflicting interests." Id. at 1079. Additionally, the single subject requirement is intended to protect voters against surprise and fraud. See In re Petition Procedures, 900 P.2d 104, 108 (Colo. 1995) (citing 1-40-106.5, 1B C.R.S. (1994 Supp.)).

Our prior decisions have established the appropriate test for determining whether or not an initiative adheres to the single subject requirement. See, e.g., In re Petition Procedures, 900 P.2d at 109; In re "Public Rights in Waters II", 898 P.2d at 1078-79. An initiative violates the single subject requirement when it 1) relates to more than one subject and 2) has at least two distinct and separate purposes which are not dependent upon or connected with each other. See In re "Public Rights in Waters II", 898 P.2d at 1078-79.

In reviewing the Board's actions setting the title, ballot title and submission clause, and summary, "we will engage in all legitimate presumptions in favor of the propriety of the Board's actions." In re Petition Procedures, 900 P.2d at 108. At the same time, "we must sufficiently examine an initiative to determine whether or not the constitutional prohibition against initiative proposals containing multiple subjects has been violated." In re 1997-98 #30, No. 97SA319, slip op. at 9.

B.

In In re 1997-98 #30, we reviewed an initiative (Initiative #30) that also proposed to amend article X, section 20, of the Colorado Constitution. Like the initiatives at issue in this case, Initiative #30 would have added a new paragraph (d) to subsection (8) of section 20 of article X of the Colorado Constitution. See In re 1997-98 #30, No. 97SA319, slip op. at 3-4. In addition to similar tax-cutting language as that contained in Initiative #84 and Initiative #85, Initiative #30 would have required the specification of a maximum tax rate with a fixed maximum number of dollars in the ballot title of voter-approved revenue and spending increases enacted since 1992. See id. at 4-5. In reviewing the initiative, we found "at least two subject matters in Initiative #30." Id. at 14. First, we explained that Initiative #30 created tax cuts. See id. Second, based on the "fixed maximum tax rates with a fixed maximum number of dollars" provision, we explained that Initiative #30 imposed new criteria for voter-approved revenue and spending increases. See id. at 14-15. Accordingly, we held that Initiative #30 was unconstitutional. See id. at 17.

In arguing that the initiatives now before us contain only one subject, the Board points out that the only difference between this case and In re 1997-98 #30 is that Initiative #84 and Initiative #85 have eliminated the objectionable provision in Initiative #30 which referred to the "fixed maximum tax rates with a fixed maximum number of dollars." See id. at 14. Thus, according to the Board, "[t]he only subject issue raised by the petitioner which is not barred by the decision in [In re 1997-98 #30] is whether the shift of state revenue to fund local programs constitutes a separate subject." The Board argues that our decision in In re Amend TABOR No. 32, 908 P.2d 125 (Colo. 1995), requires us to conclude that Initiative #84 and Initiative #85 do not include multiple subjects.

We agree with the Board that our opinion in In re 1997-98 #30 left open the question of whether or not the initiatives' provision requiring the state to "replace local revenue monthly within all tax and spending limits" constitutes an additional subject. In In re 1997-98 #30, we stated:

Outcelt argues that Initiative #30 contains the third subject of a state revenue shift to fund local programs, causing a reduction in state programs because the initiative proposes to count the state replacement of local revenues as fiscal year spending for purposes of the state's Amendment 1 spending cap.

. . . .

Because we conclude that the initiative contains more than one subject in violation of the Colorado Constitution, we do not address these additional contentions.

In re 1997-98 #30, No. 97SA319, slip op. at 17-18. Thus, the Board correctly notes that in In re 1997-98 #30, we did not address the additional subject that we now consider here. We disagree with the Board, however, that our decision in In re Amend TABOR No. 32 governs our analysis.

In In re Amend TABOR No. 32, we approved the action of the Board regarding a proposed initiative ("Amend TABOR No. 32") that sought to establish tax credits for various taxes. See In re Amend TABOR No. 32, 908 P.2d at 127-30. Amend TABOR No. 32 applied a $60 tax credit to six state or local taxes and required the state to replace on a monthly basis the local government revenues that would be lost as a result of the tax credits. See id. at 129. There, we rejected the argument that the single subject requirement was violated because more than one tax was affected. See id. We also explained that the requirement that the state replace lost local revenue was "dependent upon and closely connected to the $60 tax credit." Id. Accordingly, we held that the initiative in that case related to a "single definite object or purpose and d[id] not impermissibly encompass multiple unrelated subjects." Id.

The initiative at issue in In re Amend TABOR No. 32 is significantly different from the two initiatives now before us. Amend TABOR No. 32 did not impose any limitations on the state in terms of the manner by which the state replaced lost local revenue. See id. The state was simply required to replace the revenue that localities lost as a result of the tax credit. By marked contrast, Initiative #84 and Initiative #85 provide that "the state is required to replace monthly the local government revenue affected by the tax cuts established by this measure, within all tax and spending limits." (Emphasis added.)

To understand the "within all tax and spending limits" provision, it is necessary to review briefly the existing constitutional limits on state spending and revenue collection. Amendment 1 strictly limits increases in the state's annual spending and revenue collection. See Colo. Const. art. X, 20(4)-(8). The state's maximum annual increase in spending is tied to the amount by which inflation and population increase. See Colo. Const. art. X, 20(7)(a). Without voter approval, the state may not impose any new tax, tax rate increase, or mill levy above that for the prior year without voter approval. See Colo. Const. art. X, 20(4).

Given that the "within all tax and spending limits" provision of the initiatives now before us includes the spending and revenue limits imposed by Amendment 1, the state will be able to replace local revenues lost through tax cuts only if it reduces existing state spending on state programs. The initiatives require the state to dedicate a portion of the state's current revenues to replace lost local revenue. Because of the spending and revenue limitations contained in article X, section 20, however, the state cannot increase either its overall spending or revenue collection to maintain the current level of spending on state programs. As a result, the state must lower the amount it spends on state programs. Moreover, because the initiatives provide for increasing the amount of the tax cuts on an annual basis, the state must make ever greater reductions in its spending on state programs.

Properly viewed, then, Initiative #84 and Initiative #85 violate the single subject requirement. Notwithstanding the fact that the initiatives no longer include criteria for voter-approved revenue and spending increases, Initiative #84 and Initiative #85 still contain more than one subject. First, the initiatives provide for tax cuts. Second, the initiatives impose mandatory reductions in state spending on state programs. These two subjects are distinct and have separate purposes. While requiring the state to replace affected local revenue in itself sufficiently relates to a tax cut, requiring the state separately to reduce its spending on state programs is not "dependent upon and clearly related" to the tax cut. In re Amend TABOR No. 32, 908 P.2d at 129. The tax cuts and mandatory state spending reduction do not encompass "a single definite object or purpose." Id. The dual constitutional changes which would be enacted by these initiatives are precisely the types of mischief which the single subject requirement was intended to prevent. Voters would be surprised to learn that by voting for local tax cuts, they also had required the reduction, and possible eventual elimination, of state programs. See In re 1997-98 #30, No. 97SA319, slip op. at 17. That type of hidden subject is not permitted under article V, section 1(5.5), of the Colorado Constitution. Accordingly, the initiatives are not constitutional.

III.

Initiative #84 and Initiative #85 contain multiple subjects and thus violate the single subject requirement in article 5, section 1(5.5), of the Colorado Constitution. Therefore, the Board erred in setting the title, ballot title and submission clause, and summary for the initiatives. We remand this matter to the Board with directions to strike the title, ballot title and submission clause, and summary for Initiative #84 and Initiative #85 and to return the initiatives to the proponents.

JUSTICE KOURLIS dissents, and JUSTICE MARTINEZ joins in the dissent.

Appendix A [24] PROPOSED INITIATIVE NUMBER "1997-98 #84"

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

AN AMENDMENT TO THE COLORADO CONSTITUTION ESTABLISHING A $25 TAX CUT TO LOWER EACH 1999 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX AND FRANCHISE CHARGE, VEHICLE OWNERSHIP TAX, YEARLY INCOME TAX, AND SPECIFIED PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 THE NEXT YEAR AND $50 YEARLY THEREAFTER; REQUIRING MONTHLY STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WITHIN TAX AND SPENDING LIMITS AND YEARLY STATE AUDITS OF SUCH LIMITS; AWARDING MANDATORY LEGAL FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY; AND ALLOWING A DELAY IN YEARLY INCREASES IN ONE OR MORE TAX CUTS IF REMAINING YEARLY STATE REVENUE FROM ALL SOURCES WILL GROW LESS THAN $200 MILLION.

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

SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION ESTABLISHING A $25 TAX CUT TO LOWER EACH 1999 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX AND FRANCHISE CHARGE, VEHICLE OWNERSHIP TAX, YEARLY INCOME TAX, AND SPECIFIED PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 THE NEXT YEAR AND $50 YEARLY THEREAFTER; REQUIRING MONTHLY STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WITHIN TAX AND SPENDING LIMITS AND YEARLY STATE AUDITS OF SUCH LIMITS; AWARDING MANDATORY LEGAL FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY; AND ALLOWING A DELAY IN YEARLY INCREASES IN ONE OR MORE TAX CUTS IF REMAINING YEARLY STATE REVENUE FROM ALL SOURCES WILL GROW LESS THAN $200 MILLION?

The summary prepared by the Board is as follows:

This measure amends article X, section 20 of the Colorado Constitution, by adding a new paragraph (d) to subsection (8). A $25 tax cut, increased $25 the next year and $50 each year thereafter, would lower each state and local tax bill for each utility customer tax and franchise charge; vehicle ownership tax; yearly income tax; property tax spent on human and health services, district attorney and assessor offices, libraries, jails, courts, schools, economic development, enterprises, and authorities combined; property tax equal to annual payments for lease-purchases and school debt; and remaining business personal property tax. The initial tax cut of $25 is applied to tax bills for tax year 1999.

The state is required to replace monthly the local government revenue affected by the tax cuts established by this measure, within all tax and spending limits, and to audit each limit yearly. Legal fees and costs are awarded mandatorily to successful plaintiffs only who seek to enforce this new measure. Once a year, the general assembly may delay for one year all or a portion of the next year's increase in the tax cut for one or more taxes specified in this measure if further increase in the tax cuts or replacement revenues will result in total remaining state revenue in that next year from all sources growing less than $200 million.

State impacts. The state income tax cut would reduce the growth in state general fund revenue by $224,800,000 during the three-year period beginning with fiscal year 1998-99. The cut in the state utility customer tax would reduce the growth in state general fund revenue by an indeterminate amount during the same three-year period.

The cost to the state of replacing local government revenue losses during the three-year period beginning with fiscal year 1998-99 would be as follows:

• Vehicle ownership taxes — $347,200,000

• Property tax for specific services — at least $455,300,000

• Business personal property tax — $42,800,000.

The state would also incur costs to replace local government revenue losses for utility customer taxes, franchise charges, and other property taxes, but the amount of these additional costs is indeterminate. The state would incur costs of at least $1,100,000 to administer the tax cuts allowed by this measure. In addition, the state may incur costs for possible annual audits, but the amount of these additional costs is indeterminate.

The combined effect of the revenue reductions and the increased expenditure requirements is a net negative state fiscal impact of at least $1,071,200,000 during the three-year period beginning with fiscal year 1998-99. The figure does not include the amount of negative fiscal impact that will occur but is indeterminate at this time.

The fiscal impact to the state described above assumes no impact by the $200,000,000 minimum annual increase in all state revenue contained in the measure.

Local impacts. This measure may have a negative fiscal impact on some local governments, since the state would be obligated to replace local revenue losses only up to local tax and spending limits and revenues are currently being collected outside those limits. This measure may increase local government costs due to possible audit costs, legal fees and costs that must be mandatorily awarded, and possible increased litigation. The amount of these additional local costs is indeterminate.

Hearing adjourned April 1, 1998, 5:48 p.m.

April 15, 1998 Rehearing

Mr. John S. Outcelt motion denied.

Rehearing adjourned 4:50 p.m.

Appendix B [46] Proposed Initiative Number "1997-98 #85"

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

AN AMENDMENT TO THE COLORADO CONSTITUTION ESTABLISHING A $25 TAX CUT TO LOWER EACH 1999 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX, VEHICLE OWNERSHIP TAX, YEARLY INCOME TAX, AND SPECIFIED PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 THE NEXT YEAR AND $50 YEARLY THEREAFTER; REQUIRING MONTHLY STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WITHIN TAX AND SPENDING LIMITS AND YEARLY STATE AUDITS OF SUCH LIMITS; AWARDING MANDATORY LEGAL FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY; AND ALLOWING A DELAY IN YEARLY INCREASES IN ONE OR MORE TAX CUTS IF REMAINING YEARLY STATE REVENUE FROM ALL SOURCES WILL GROW LESS THAN $200 MILLION.

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

SHALL THERE BE AN AMENDMENT TO THE COLORADO CONSTITUTION ESTABLISHING A $25 TAX CUT TO LOWER EACH 1999 STATE AND LOCAL TAX BILL FOR EACH UTILITY CUSTOMER TAX, VEHICLE OWNERSHIP TAX, YEARLY INCOME TAX, AND SPECIFIED PROPERTY TAX, AND, IN CONNECTION THEREWITH, INCREASING THE TAX CUT $25 THE NEXT YEAR AND $50 YEARLY THEREAFTER; REQUIRING MONTHLY STATE REPLACEMENT OF AFFECTED LOCAL REVENUE WITHIN TAX AND SPENDING LIMITS AND YEARLY STATE AUDITS OF SUCH LIMITS; AWARDING MANDATORY LEGAL FEES AND COSTS TO SUCCESSFUL PLAINTIFFS ONLY; AND ALLOWING A DELAY IN YEARLY INCREASES IN ONE OR MORE TAX CUTS IF REMAINING YEARLY STATE REVENUE FROM ALL SOURCES WILL GROW LESS THAN $200 MILLION? The summary prepared by the Board is as follows:

This measure amends article X, section 20 of the Colorado Constitution, by adding a new paragraph (d) to subsection (8). A $25 tax cut, increased $25 the next year and $50 each year thereafter, would lower each state and local tax bill for each utility customer tax; vehicle ownership tax; yearly income tax; property tax spent on human and health services, district attorney and assessor offices, libraries, jails, courts, schools, economic development, enterprises, and authorities combined; property tax equal to annual payments for lease-purchases and school debt; and remaining business personal property tax. The initial tax cut of $25 is applied to tax bills for tax year 1999.

The state is required to replace monthly the local government revenue affected by the tax cuts established by this measure, within all tax and spending limits, and to audit each limit yearly. Legal fees and costs are awarded mandatorily to successful plaintiffs only who seek to enforce this new measure. Once a year, the general assembly may delay for one year all or a portion of the next year's increase in the tax cut for one or more taxes specified in this measure if further increase in the tax cuts or replacement revenues will result in total remaining state revenue in that next year from all sources growing less than $200 million.

State impacts. The state income tax cut would reduce the growth in state general fund revenue by $224,800,000 during the three-year period beginning with fiscal year 1998-99. The cut in the state utility customer tax would reduce the growth in state general fund revenue by an indeterminate amount during the same three-year period.

The cost to the state of replacing local government revenue losses during the three-year period beginning with fiscal year 1998-99 would be as follows:

• Vehicle ownership taxes — $347,200,000

• Property tax for specific services — at least $455,300,000

• Business personal property tax — $42,800,000.

The state would also incur costs to replace local government revenue losses for utility customer-taxes and other property taxes, but the amount of these additional costs is indeterminate. The state would incur costs of at least $1,100,000 to administer the tax cuts allowed by this measure. In addition, the state may incur costs for possible annual audits, but the amount of these additional costs is indeterminate.

The combined effect of the revenue reductions and the increased expenditure requirements is a net negative state fiscal impact of at least $1,071,200,000 during the three-year period beginning with fiscal year 1998-99. The figure does not include the amount of negative fiscal impact that will occur but is indeterminate at this time.

The fiscal impact to the state described above assumes no impact by the $200,000,000 minimum annual increase in all state revenue contained in the measure.

Local impacts. This measure may have a negative fiscal impact on some local governments, since the state would be obligated to replace local revenue losses only up to local tax and spending limits and revenues are currently being collected outside those limits. This measure may increase local government costs due to possible audit costs, legal fees and costs that must be mandatorily awarded, and possible increased litigation. The amount of these additional local costs is indeterminate.

Hearing adjourned April 1, 1998, 5:50 p.m.

April 15, 1998 Rehearing

• Mr. John S. Outcelt motion denied.

Rehearing adjourned 4:53 p.m.