Colorado Supreme Court Rules Against Defend Colorado Now's Constitutional Amendment

**Update--Proposal backers have two weeks to appeal the decision (which they will)
--video, opponents' lawyer declares proposal dead, Peña's absurd response, proponents vow to continue fight--More Peña blathering (video)--

Eugene Volokh at The Volokh Conspiracy (bookmark it) finds the ruling puzzling as well.

Rep. Tom Tancredo weighs in:

On Monday, Tancredo, the Littleton Republican who is one of the most vocal congressional critics of current immigration policy, called the court's decision an "arrogant usurpation of citizens' constitutional prerogatives."

So does the Rocky Mountain News editorial:

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.

Former Denver Mayor Federico Pena and attorney Mark Grueskin, background, discuss the state Supreme Court's decision Monday. Peña said the amendment hadn t been drafted carefully. (Post / Hyoung Chang)

More judicial activism from the Colorado Supreme Court--as it rules against a proposed constitutional amendment:

DENVER -- The Colorado Supreme Court ruled Monday that a proposal to deny most state services to illegal immigrants cannot appear on the November ballot.

The ruling may mean the issue is dead for this year because a key deadline for the November ballot is past, the secretary of state's office said.

The proposed constitutional amendment, promoted by Defend Colorado Now, violates a state constitutional requirement that initiatives deal with only one subject, the court said in a 5-2 opinion.

The measure aimed to decrease public spending for the welfare of illegal immigrants in Colorado and restrict access to administrative services, the ruling said.

So any new proposed amendment/initiative must have only one purpose? Every proposal has a main goal, however, many additional goals may be explicitly or implicitly inferred from the main purpose, like the Fastracks proposal two years ago--more public transport=less automobiles on road=less commuting time=less pollution. More than one outcome there.

"This is outrageous judicial activism, Exhibit A in how courts disregard precedent to reach a political result," Lamm said in a statement. "This isn't law, it is raw, naked politics."

A similarly worded proposal apparently did not attract as much attention two years ago, and was approved despite similar challenges, although proponents failed to gather enough signatures to get it on the ballot:

The Supreme Court had approved a similar proposal for the 2004 ballot, rejecting a challenge that it was misleading. Proponents were unable to gather enough signatures and it did not get on the ballot.

This year, proponents had argued that the court could not reverse its decision from 2004. The court disagreed, saying the measure had been challenged on different grounds, and that state law requires the justices to review any challenges.

The Colorado Supreme Court applies some pretty tortured and convoluted logic in ruling against the proposed amendment, and the judicial capriciousness and politicking is rightly taken to task by the two dissenting votes:

The ruling said Defend Colorado Now touts the possibility of reducing taxpayer expenditures by restricting illegal immigrants' access to services, as well as the goal of restricting access to services.

"Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme," the ruling said.

In a dissent, Justices Nathan Coats and Nancy Rice expressed concern that the decision was influenced by the motives of the measure's proponents and by its potential effects. They said the court has inconsistently applied the single-subject requirement, giving justices "unfettered discretion to either approve or disapprove virtually any popularly initiated ballot measure at will."

"The susceptibility of any group motivation or objective to being thinly sliced is limited only by the ingenuity (and desire) of the court doing the slicing," the dissenters said. "And according to the majority's logic, each such `purpose' apparently constitutes a `subject' of the initiative."

Exactly the modus operandi of modern judicial activism--finessing the law through the position of the court as the final arbiter, and an almost academic manipulation of the words comprising the law itself. Who but the judges would not ascertain that a denial of state services to a substantial population of illegally present immigrants would not constitute a savings of public money and therefore reduce state expenditure? So reducing services and therefore reducing expenditure are unrelated--"connected only by a broad and overarching theme"? Even if, as Defend Colorado maintains, they did not tout the reduced expenditure as an explicit benefit of the proposal, it would surely be implied. If it is only the implicit suggestion that denial of service to illegal immigrants would reduce state spending that resulted in the Court's decision, then all ballot proposals should face similar scrutiny (and all would fail) of the Court's "unfettered discretion to either approve or disapprove virtually any popularly initiated ballot measure at will."

View From A Height has more on Our Postmodern Judiciary--and the need for checks and balances.