Ballot Title Setting Board
c/o The Honorable Donetta Davidson
Secretary of State
State of Colorado
1560 Broadway Ste 200
Denver, CO 80202-5169

Dear Sirs:

I am a registered elector in the State of Colorado. As provided for in section 1-40-107(1), Colorado Revised Statutes (C.R.S.), I respectfully request a rehearing concerning the title, ballot title and submission clause, and summary for ballot initiative 1999 - 2000 #255, which is also referred to as "Background Checks - Gun Shows," for numerous reasons including the following:

1. The provisions of section 1-40-105(2) C.R.S. were not followed in submitting the final draft to the Secretary of State in that amendments were made to the original draft without resubmitting to the directors of the legislative council and the office of legislative legal services.
2. The provisions of section 1-40-106(3)(a), C.R.S. were not followed in referring the proposed initiative to the Ballot Title Setting Board in that the fiscal impact from the Office of State Planning and Budgeting was not received by 12 noon on the Friday before the meeting of the title board as required. Evidence and testimony were presented at the title board that the initial fiscal impact was received at 12:05 PM on Friday, March 31, 2000, and a replacement fiscal impact, which was referenced in preparing the fiscal impact contained in the requirement for an appropriation, was not received until 3:15 PM on Friday, March 31, 2000. Testimony was offered that previous late fiscal impacts resulted in a delay until the next meeting of the title board.
3. The title does not accurately represent the true intent and meaning of the proposed initiative as required by section 1-40-106(3)(a), C.R.S.: The title implies that background checks are not currently required for any transfer at a gun show when, in fact, every transfer at a gun show from a Federal Firearm Licensed (FFL) dealer, which constitute the vast majority of transfers, requires a background check. As written, the title could result in public confusion in violation of section 1-40-106(3)(b) C.R.S.
4. The title violates the requirement for a single subject as required by section 1-40-106.5, C.R.S., and section 1 (5.5) of article V of the state constitution which require that every law proposed by initiative be limited to a single subject clearly expressed in its title, in that the proposed initiative contains the following multiple subjects:
1. The title requires that a background check be conducted on firearm transfers at a gun show,
2. The title also requires a gun show promoter obtain the services of a licensed gun dealer while a gun show, as defined in proposed section 12-26.1-106(3), may be held with only private, non-dealer persons. There is no requirement for a licensed gun dealer to participate as a vendor to qualify as a gun show. Requiring a licensed gun dealer to be present at a gun show for the only purpose of conducting background checks is an additional requirement to the mere holding of a gun show,
3. The title also implements a new record keeping and retention requirement for a licensed gun dealer who conducts a background check for a private transfer. Not only is this requirement not currently required for FFL dealers, it is, in fact, prohibited by Federal law in that FFLs may initiate a National Instant Check System (NICS) background check only in connection with a proposed firearm transfer to which they are a party as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose [28 CFR sec. 25.6 (a)],
4. The title also requires gun show promoters to post notices at gun shows requiring background checks. Background checks are already required for all transfers from a licensed gun dealer. There is no requirement that a gun show include private, non-dealer transfers and, in fact, a gun show promoter could prohibit the private transfer of firearms in which case the required posting would have no value,
5. The title also allows a licensed firearm dealer to charge a fee for requesting a background check. Currently, there is no fee required for a licensed gun dealer to request a background check nor for the purchaser to pay a fee; therefore, this is a new requirement, and
6. The title also requires that the General Assembly appropriate taxpayer funds which could be used for other programs. In the Matter of the Title, Ballot Title and Submission Clause and Summary for 1997 - 98 #84, 961 P.2d 456 (Colo. 1998), the Court held that the mandated expenditures constitute an additional subject. This proposed initiative allows a licensed firearm dealer to charge a prospective transferee a fee of up to $10 to conduct a background check. Colorado Senate Bill 00-125, signed into law by the Governor of the State of Colorado on March 7, 2000, provided an appropriation for the Colorado Bureau of Investigation to conduct background checks, without charge, for transfers from a Federal Firearm Licensed dealer to a non-licensed person. Section 12-26.1-107 of the proposed initiative requires the General Assembly to provide an increase in appropriations to cover the costs associated with conducting background checks on firearms involving private, non-licensed dealers. Requiring an appropriation, in addition to a fee, is a subject apart from the mere requirement to conduct a background check on a firearm transaction involving a private, non-licensed person at a gun show.
5. The ballot title and submission clause violate section 1-40-106(3)(a), C.R.S. in that it is not clear and concise. The ballot title and submission clause contain multiple subjects and leads the voter to infer that background checks are not currently required for any transfer at a gun show. This implication violates the requirement for objectivity since the vast majority of transfers at a gun show are from a licensed gun dealer which currently require a background check.
6. The ballot title violates section 1-40-106(3)(b), C.R.S. which requires the ballot title and submission clause be brief and unambiguously state the principle of the provision to be added in that the proposed initiative requires background checks for firearm transfers at gun show when, in actuality, the proposed initiative seeks to only add the requirement for background checks on the private transfer of firearms not involving an FFL dealer.
7. The agenda for the April 5, 2000 Ballot Title Setting Board, as well as the notice of hearing meeting for proposed initiative 1999 - 2000 #255, contain the following statement: "AGENDA ITEMS NOT COMPLETE AT THE END OF THE DAY WILL BE CONTINUED TO A DATE, TIME, AND PLACE TO BE DETERMINED ON WEDNESDAY, APRIL 5, 2000." The "end of the day" for Colorado State business is generally considered to be 5:00 PM. Based on the agenda notice, some interested parties had not made plans to participate in the Ballot Title Setting Board past 5:00 PM; however, the board chairman refused to recess the meeting until a later time thus preventing some parties with business before the board from being present.

Thank you for your attention to this matter. I understand this request for a rehearing will be considered at the Ballot Title Setting Board on April 19, 2000.

Sincerely,

/signed/
William Bernard Herpin, Jr.

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