Monday’s Colorado Supreme Court ruling rejecting a proposed constitutional amendment on illegal immigration is outrageous for two reasons: The decision is transparently arbitrary and subjective, and it took the court more than five months to decide the case.
This delay, the court knew, would, under existing rules, effectively prevent the initiative supporters from getting the measure on the ballot.
The court’s 4-to-2 decision, written by Justice Alex Martinez, is hardly worth reading in that it is the latest in a string of inconsistent decisions limiting petition rights.
The immigration amendment was intended to deny non-emergency services, other than those mandated by the federal government, to illegal immigrants. But the court magically found two subjects in the amendment’s brief text and concluded it violated the single-subject requirement of the state constitution.
The court said the amendment dealt both with decreased spending on services to “individuals not lawfully present in Colorado” and with a denial of access to administrative services.
Strangely, the text of the amendment contains no specific mention of administrative services. The court cited website references by amendment sponsors on the transfer of property interests as proof of a second subject.
Justice Ben Coats, writing for himself and Justice Nancy Rice, took apart the court’s reasoning in a short dissent. Coats said the court’s decision confused multiple purposes with multiple subjects, pointing out that initiative sponsors might well legally advocate measures that likely would have multiple effects.
Coats is, of course, right – but he is also much too polite. The single-subject requirement, a referred measure passed by the voters in 1994, has been interpreted by the court to create a clear double standard.
A loose standard applies to the legislature. The tougher and ever-changing court standard applies only to ballot initiatives. Needless to say, when the single-subject measure was being sold to the voters, it was said over and over again that the amendment would simply require initiatives to meet the standard as the legislature. That was a lie then; it is a lie today.
A referred measure from the legislature already on the ballot would create domestic-partnership benefits in the state and affect all manner of probate, adoption, divorce and custody matters – and yet it is presumed to cover just one subject. No single-subject challenge may be brought prior to passage.
The governor and the attorney general want the court to reconsider its decision, and Gov. Bill Owens says he may call a special of the legislature to act on the issue if the court doesn’t reconsider.
That might solve the problem with the immigration initiative, but a bigger fix is needed to solve the problem of judicial overreaching.
Amendment 38, the Petition Rights Amendment (see pra2006.com for details) is on this year’s ballot and would, if passed, directly limit the opportunity for the courts to decide political and policy matters under the guise of convoluted procedural rulings.
The PRA would require single-subject challenges to ballot initiatives to be filed within five days of the setting of a ballot title and to be decided by the Supreme Court in seven days.
In addition, any court ruling would have to contain in writing the exact phrases the court finds to constitute a “second subject.”
The new deadlines would allow sponsors to quickly fix any alleged defect in a timely manner before signatures are collected.
In the most recent case, because of unconscionable court delays, some 40,000 petition signatures are going to be tossed into the trash. That is as outrageous as the shallow and arbitrary court decision that makes it necessary.
No petition has ever changed a law. The only thing that can change the law is an affirmative vote of the people.
The state Supreme Court has effectively prevented Colorado voters from deciding what services should be available to those who are here illegally.
Those who would have opposed that amendment have as many reasons to resent the court’s decision as those who would have supported it. Passing Amendment 38 is the best way to right that wrong.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
