Court said yes two years ago - but no this time

Kevin Flynn, Rocky Mountain News

Published June 13, 2006 at midnight

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The two measures are virtually identical. All the words are the same.

But the Colorado Supreme Court has made two different rulings on essentially the same ballot measure affecting illegal immigrants.

The measure the court blocked from the ballot Monday would prohibit illegal immigrants in Colorado from receiving taxpayer-funded public services except those required by the federal government - K-12 education, emergency medical care and assistance in the event of a public safety emergency.

Two years ago, the justices gave their OK to the measure. It never made it on the ballot, though, because organizers failed to raise the money needed to organize a petition drive.

But in Monday's ruling, the justices said the same measure is not fit for the ballot this time around.

How can the seemingly contradictory rulings be explained?

Two years ago, no one asked the court if the immigration amendment violated the state constitutional rule that ballot issues must deal with a single subject.

This time, someone did.

"The Supreme Court can only decide on the questions that are presented to it," said attorney Scott Robinson, an analyst who isn't involved in the immigration issue.

In 2004, opponents challenged the measure on the grounds that its title - the synopsis that appears on top of the ballot - was misleading in that it didn't fully explain the impact of the amendment.

The state Supreme Court saw it differently and rejected the challenge.

But this time, opponents claimed the initiative dealt with several distinct subjects, violating the single-subject rule.

It was a completely different line of attack, and on that question, four of the seven justices agreed with opponents. One justice abstained.

The court said the proposal dealt with at least two distinct subjects: decreasing public spending for the welfare of illegal immigrants in Colorado and restricting access to administrative services such as recording real estate transactions.

"Two years ago, we thought the ballot title was so awkwardly worded, people wouldn't know what they were voting for," said attorney Mark Grueskin, who represented the opponents. "This year, we used the single-subject rule."

Former Gov. Dick Lamm, a leader of the proponents, said it is all politics anyway.

"This is a single subject," Lamm said. "The single subject is restricting eligibility for government services."

"There is a reason to have a singe-subject rule," Lamm said. "But now the Supreme Court sets itself up to decide what the people of Colorado can vote on. This doesn't even have the fig leaf of respect."

Lamm noted that two years ago Grueskin himself said in a written brief he couldn't legitimately raise a single-subject challenge.

Grueskin agreed that he wouldn't have made the single-subject argument two years ago.

"My argument to the court was based on a lot of changes between now and then," Grueskin said. "The political debate has shifted."

"The court didn't say that this (the initiative) was a bad idea, or a wrong idea, or an idea that was problematic from a policy point of view," said Grueskin. "They just said it was an initiative that contained too many ideas."

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