concurring and specially concurring:
I concur in the judgment of the court. I agree with the majority that the actions of the Title Board must be reversed because the titles and summary are unclear and misleading, in addition to employing a prohibited catch phrase. See maj. op. at 1097. However, I write separately to explain why, in my judgment, the Title Board also erred because the initiative contains multiple subjects, in violation of Colo. Const. art. V, section1
I.
I begin with a brief review of the principles governing our inquiry into whether an initiative contains a single subject. An initiative does not contain a single subject if it has "at least two distinct and separate purposes that are not dependent upon or connected with each other." In re "Public Rights in Waters II, 898 P.2d 1076, 1078-79 (Colo.1995). Despite the proponent's effort to unite distinct and unconnected purposes under the same general area of law, a measure has multiple subjects if it tends to carry out two or more general purposes. See In re Proposed Initiative for 1999-2000 # 200(A), 992 P.2d 27, 30 (Colo.2000); see also In re Proposed Initiative for 1999-2000 # 29, 972 P.2d 257, 262 (Colo.1999) ("Use of a generic title will not insulate a proposal from compliance with applicable constitutional and statutory requirements.").
This court may not consider the merits or application of a proposed initiative to determine if it contains a single subject. See In re Proposed Initiative # 29, 972 P.2d at 260. However, this court "must sufficient, ly examine" a proposal to determine if it complies with the single-subject requirement. See id. (internal quotation marks omitted).
IL.
Applying these principles to the measure before us, 1 conclude that it contains at least three distinct and unrelated purposes: (1) instruction of Colorado public school students in the English language, with an option for parents to waive their children out of the "English immersion" program;2 (2) reallocation of school districts' constitutional authority to control the instruction of their students; and (8) elimination of bilingual education programs. Therefore, I would reverse the actions of the Title Board on the additional ground that Initiative # 258(A) contains multiple subjects, in violation of Colo Const. art. V, section 1(5.5).
A.
I begin by explaining why, in my judgment, Initiative # 258(A) has the distinct and unrelated subject of partially shifting school districts' constitutional authority to implement educational programs to local schools. The measure provides that "[nlo school or school district shall be required to offer a bilingual education program." Our prior decisions establish that such a reallocation of constitutional authority is a purpose distinct from and unrelated to the measure's central purpose of mstructlng students in English. Consequently, Initiative # 258(A) violates the single-subject requirement.
1.
On at least two occasions this court has rejected, under the single-subject require*1106ment, initiatives that called for similar reallo-cations of constitutional authority. In In re Proposed Initiative for 1997-1998 # 64, 960 P.2d 1192 (Colo.1998), we considered an initiative with the central purpose of altering the qualifications of persons for judicial office. See id. at 1197. One provision of the initiative called for repeal of Colorado Constitution article VI, section 26, which grants the City and County of Denver control over county court judges of the City and County of Denver. See id. We held that this provision violated the single-subject requirement. See id. at 1198.
This court acknowledged that repeal of article VI, section 26 "indirectly affects the qualifications of Denver County court judges in the sense that it changes the governmental entity which controls those qualifications." Id. However, we recognized that the central objective of the repeal provision was to reallocate governmental authority and control over county judges for the City and County of Denver. See id. Such shifting of constitutional authority "does not share a unifying or common objective with those provisions changing the qualifications of judicial officers." Id. Therefore, we held that the repeal provision violated the single-subject requirement. See id. and cases cited therein.
Similarly, in In re Proposed Initiative # 29, 972 P.2d at 262, this court considered a measure purporting to address only the selection, retention, and removal of judicial personnel. We held that the proposal violated the single-subject requirement for several reasons. See id. Of particular relevance to this case is our analysis of the provision that curtailed the jurisdiction of Denver county courts. See id. at 264.
The initiative barred Denver county courts from exercising statewide jurisdiction, as provided for under section 13-6-108, 5 C.R.S. (1999), unless the City and County of Denver implemented the initiative's provisions in full. See id. Even though the provision did not directly call for a repeal of article VI, section 26, see id. & n.12, we held that it nonetheless violated the single-subject requirement on essentially the same grounds set forth in In re Proposed Initiative # 64, 960 P.2d at 1198. Compelling the City and County of Denver to implement the initiative's provisions regarding the qualification of judicial officers, at the risk of its county court judges losing statewide jurisdiction, "involves altering the constitutional power of the City and County of Denver over the county court." Id. We held that this purpose constitutes a separate subject and therefore invalidated the initiative. See id.
2.
In my judgment, the measure before us contains multiple subjects because it partially reallocates school districts' constitutional authority to control the instruction of students to schools within each district. This purpose is distinct and unrelated from the initiative's central purpose of securing public school students instruction in English.
Our state constitution expressly allows school districts to govern public school instruction. According to Colo. Const. art. IX, section 15:
The general assembly shall, by law, provide for organization of school districts of convenient size, in each of which shall be established a board of education, to consist of three or more directors to be elected by the qualified electors of the district. Said directors shall have control of instruction in the public schools of their districts.
(Emphasis added.) See also § 22-23-109(1)(t), 7 C.R.S. (1999) (stating that each board of education shall "determine the educational programs to be carried on in the schools of the district and to prescribe textbooks for any course of instruction or study in such programs").
This court has long recognized the clear meaning of article IX, section 15 "Here is a constitutional mandate that instruction in the public schools of every school district shall be under the control of the directors thereof." School Dist. No. 16 v. Union High Sch. No. 1, 60 Colo. 292, 293, 152 P. 1149, 1149 (1915); see also Board of Educ. v. Booth, 984 P.2d 639, 646 (Colo.1999) (stating that article IX, section 15 "makes Colorado one of only six states with an express constitutional provision for local governance [of public schools], underscoring the importance of the concept for our state"); Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005, 1021 (Colo.1982) ("The historical development of public edu*1107cation in Colorado has been centered on the philosophy of local control.").
In Booth, 984 P.2d at 648-49, we reviewed our prior decisions concerning the scope of the authority granted local school districts under our constitution. Two of the "guiding principles," id. at 649, we identified are relevant to this case. First, a "generally applicable law triggers control of instruction concerns when applied to specific local school board decisions likely to implement important education policy." Id. Second, "general statutory or judicial constraints, if they exist, must not have the effect of usurping the local board's decision-making authority or its ability to implement, guide, or manage the educational programs for which it is ultimately responsible." Id.
Initiative # 258(A) states that "Inlo school or school district shall be required to offer a bilingual education program." This provision "triggers control of instruction concerns," Booth, 984 P.2d at 649, because it eliminates the capacity of a school district to require that a school within the district provide a bilingual education program. Instead, individual discrete schools would decide whether to provide a bilingual education program. Even if a school district establishes a policy of bilingual education, under the initiative a sehool within the district may refuse to implement the district's bilingual program. The result is a clear infringement of a school district's constitutional authority, because "control of instruction requires substantial discretion regarding the character of instruction that students will receive at the district's expense." Id. at 648.
A direct purpose of this provision is to partially shift the constitutional authority of school districts "to implement, guide, or manage the educational programs for which it is ultimately responsible" to local schools. Id. at 649. Because the purpose of reallocating the constitutional authority of school districts is distinct and unconnected from the purpose of fostering the instruction of public school students in English, the initiative violates the single-subject requirement. See In re Proposed Initiative # 64, 960 P.2d at 1198.
It does not save the initiative to note that it does not facially call for a reallocation of school districts' constitutional authority. We acknowledged in In re Proposed Initiative # 29, 972 P.2d at 265, that the provision at issue did not explicitly call for reallocation of the constitutional authority of the City and County of Denver over the county court judges. However, we recognized that the provision "involve[d] altering the constitutional power of the City and County of Denver," id., and, as such, constituted a separate subject in the initiative. See id. Similarly, even though the initiative before us does not explicitly require reallocation of school districts' constitutional authority, because it has that direct effect, the initiative violates the single-subject requirement.
Reallocation of school districts' constitutional authority cannot be legitimately interpreted as an implementing device, and thus part of the initiative's single subject of creating "English immersion" programs. We have upheld implementation provisions only when they are "directly tied" to the initiative's "central focus." In re Proposed Initiative # 200(A), 992 P.2d at 30. Dramatically curbing a local school district's constitutional authority, in my view, is not "directly tied" to the initiative's "central focus" of providing "English immersion" instruction because the former is not a "mechanism for carrying out the initiative's single subject." Id. at 31. Reallocation of constitutional authority is instead an independent purpose of the measure before us. Compare id. (upholding reporting provisions of initiative calling for "voluntary and informed consent" before an abortion procedure).
Moreover, the single-subject requirement is intended "to prevent surprise and fraud from being practiced upon voters" by not allowing disparate items to be concealed in a lengthy or complex proposal. In re Proposed Initiative # 64, 960 P.2d at 1196. I am confident that many voters would be surprised to find a far-reaching reallocation of their school district's constitutional power to control the instruction of students concealed in a single sentence in the middle of this initiative. See id.3
I conclude that Initiative # 258(A) violates the single-subject requirement because it *1108shifts the constitutional authority of school districts to establish and implement bilingual educational programs to individual schools.
B.
I also believe that the initiative violates the single-subject requirement because it has the distinet and unrelated purpose of allowing for the elimination of bilingual education programs while granting parents an option of waiving their children out of the "English immersion" program into bilingual programs.
The central focus of the initiative is not to require "English immersion" as the sole method of instruction. Rather, subsection (4)(a)-(c) of the initiative provides a detailed procedure for parents to waive their children out of the "English immersion" program and into a bilingual or related educational program. These provisions are part of the measure's central focus of providing "English immersion" instruction as an alternative instruction program.
It follows that granting schools the authority not to provide bilingual education programs is a purpose not dependent upon or connected to the initiative's central focus of requiring "English immersion" instruction as an alternative method of instruction. A provision that is internally inconsistent with the core purpose of an initiative cannot be readily interpreted as "necessarily or properly connected" to the initiative's purpose. In re "Tabor 25", 900 P.2d 121, 125 (Colo.1995). I therefore cannot view the provision allowing for the elimination of bilingual education programs as part of the initiative's single subject.
Further, I believe that the measure before us is a prime example of the dangers the single-subject requirement is intended to prevent. - The constitutional - prohibition against an initiative containing more than a single subject "prevents the proponents of an initiative from joining multiple subjects into a single initiative in the hope of attracting enough support from various factions which may have different or conflicting interests." In re "Public Rights in Waters II", 898 P.2d at 1079. The single-subject requirement thereby prevents the passage of measures "that could not be carried upon their merits." In re Proposed Initiative # 64, 960 P.2d at 1196.
This initiative presents a dilemma to voters favoring the proposal's creation of a right to "English immersion" measures while be-leving that bilingual education is appropriate for some students and strongly objecting to curtailing a school district's ability to provide bilingual education programs. "A voter favoring one of the subjects but not the other is required to vote for both of them in an effort to secure approval of the subject he or she would like to have enacted. Article V, section 1(5.5) ... prevent[s] such 'log-rolling"" In re Proposed Initiative # 29, 972 P.2d at 265.
I conclude that Initiative # 258(A) violates the single-subject requirement because it contemplates the elimination of bilingual education programs while also creating the right of parents to waive their children into such programs.
IIL.
I concur in the judgment of the court that the titles and summary of Initiative # 258(A) are unclear and misleading, and employ a prohibited catch phrase. I also specially concur because I believe that the initiative before us contains additional subjects that are unconnected with the purpose of providing "English immersion" instruction while also allowing parents to waive their children into bilingual education programs. Therefore, I would hold that the Title Board erred by setting a title for an initiative that contains more than one subject.
I am authorized to state that Justice BENDER joins in the concurrence and special concurrence.
. "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." Colo. Const. art. V, § 1(5.5). See also § 1-40-106.5(3), 1 C.R.S. (1999).
. This is the purpose of the initiative articulated by its proponents and the Title Board in their briefs, although each expresses the purpose in slightly different terms than does the other.
. This argument reiterates the majority's holding that the title and summary are unclear and mis*1108leading. However, provisions causing voter surprise or uninformed voting also may constitute a single-subject violation.