Court undermines citizen ballot right

'Single subject' ruling quite a stretch

Published June 13, 2006 at midnight

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The Colorado Supreme Court embarrassed itself Monday by apparently letting its political predilections determine an important decision.

It ruled, 4-2, that a proposed initiative prohibiting illegal immigrants from availing themselves of many state services contained more than one subject and was thus disqualified from the November ballot.

The court really had to reach to find that second subject, prompting us to conclude it worked backward from the finding it wanted instead of forward from the arguments made.

The court killed the proposal despite approving virtually identical language two years ago without dissent. That proposal never made the 2004 ballot because sponsors couldn't gather the signatures in time.

The initiative, sponsored by former Gov. Dick Lamm and a group called Defend Colorado Now, would have restricted non-emergency services provided by state and local governments to citizens and immigrants legally in the country - unless services to those here illegally were mandated by federal law.

The measure gave citizens the right to enforce the law in civil court, and allowed the legislature to implement the proposed law through "appropriate legislation."

That's it. Yet the court found this simple proposal contained two subjects: 1) decreasing taxpayer expenditures on behalf of illegal immigrants and b) denying them access to certain administrative services.

Rather than being "incongruous," as the court maintains, both of those "subjects" fit seamlessly under the single intention of initiative sponsors to deny government services to illegal immigrants.

The majority claimed it discovered this second "purpose" by reading the Defend Colorado Now Web site. You'd think a court that overthrew Robert Harlan's death penalty because jurors consulted a Bible during the sentencing phase wouldn't go poking around on Web sites in search of extra-legal arguments, but would stick to the briefs.

We note for the record that this newspaper has taken no position on the initiative. The only issue that concerns us here is the people's right to launch ballot issues without contrived interference from the courts.

It's clear to us that the proposal doesn't even come close to violating the single-subject rule. If the high court can keep the electorate from voting on this issue, there's practically nothing that can get on the ballot if four members of the court don't want it there.

Justice Nathan Coats, in a brief dissent concurred in by Nancy Rice, notes his concern "about what I consider to be our lack of consistency in applying the single-subject requirement and our unwillingness to confine our review to the particular dangers that requirement was designed to guard against."

The majority "understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove any popularly-initiated ballot measure at will."

Exactly. As it happens, Lamm's group had already collected about 40,000 signatures. Since the deadline for submitting them is Aug. 7 it couldn't wait until the high court came down with its ruling. Signature gathering and other expenses came to about $100,000 - now completely wasted.

Which raises another point that has long struck in our craw: the discretion the court has in reaching a decision. There are no deadlines. The protest was filed Jan. 25 and the last brief was due March 17. The court has had the case almost five months. The court can kill an initiative as much by delay as by a ruling.

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