Justice Rice on Illegal Immigration
From Judgepedia
In a bitterly disputed 4-2 decision (Justice Allison Eid did not participate), Justices Rice and Coats dissented with the majority opinion, written by Justice Alex Martinez, which struck down a citizen-sponsored ballot measure that, if passed, would have prohibited Colorado from providing non-emergency government services to illegal immigrants. The Majority characterized the measure as violative of the Colorado's single subject rule because it contained "at least two subjects," that it viewed as "unrelated:" "decreasing taxpayer expenditures" and "restricting unrelated administrative services."
In a vociferous dissent, Coats and Rice expressed outrage, noting that "once again the majority finds a popular-initiated proposal for amending the state constitution unsuitable for consideration by the electorate," even though the Initiative "contains a single mandate," of restricting government services to illegal immigrants, and further noting a "lack of consistency in applying the single-subject requirement" that "understands the term 'subject' to be so elastic as to give this court unfettered discretion to either approve or disapprove virtually any popularly-initiated ballot measure at will."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"We agree that Initiative # 55 contains multiple subjects connected only by the broad theme of restricting non-emergency services. The concept of a single subject at first glance appears straightforward. However, an initiative may be offered as a single subject by stating the subject in broad terms. If an initiative states vague terms, then it may appear to present a single subject. But when the details necessary to understand the subject are considered, the initiative may involve separate subjects."
* ON HOW REDUCING GOVERNMENT SPENDING IS NOT RELATED TO REDUCING GOVERNMENT SERVICES:"Turning to the Initiative itself, we determine that its claimed subject, restricting non-emergency services, is broad and intended to affect all government operations. Against this backdrop, we explore the purposes effected by restricting all non-emergency services not mandated by federal law and identify two distinct, unrelated purposes: reducing taxpayer expenditures by restricting the delivery of benefits in the nature of medical and social services to individuals lawfully present in Colorado and restricting other largely administrative services that do not primarily confer benefits to individuals. Because we determine these purposes are unrelated, we conclude they comprise multiple subjects connected only by a broad and overarching theme."
* ON TAKING A BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"[A]n initiative grouping distinct purposes under a broad theme will not satisfy the single subject requirement. That is, although an initiative may contain several purposes, they must be interrelated."
* ON THE LEVEL OF SPECIFICITY REQUIRED FOR A PETITION TO ESCAPE THE COURT'S SCRUTINY: "the Initiative does not thereafter define “non-emergency” and “services,” categorize the types of services to be restricted, or set forth the purpose or purposes of restricting non-emergency services. The only stated limit on the scope of this theme pertains to federal law."
* ON THE SOCIETAL EFFECTS OF INHIBITING ILLEGAL IMMIGRANT'S ACCESS TO BASIC SERVICES:"[A]lthough the Initiative restricts the target group's access to administrative recording services, its effect is broader. In addition to affecting the target group, the Initiative also affects citizens by impairing the functions of regulatory, licensing and dispute-resolution services. For example, it would affect anyone transacting real estate business and could complicate the transfer of real property from unlawfully present to lawfully present individuals and the recording of lien interests. * * * conclude these two purposes-terminating services benefiting the welfare of individuals not lawfully present in Colorado and denying access to unrelated administrative services that facilitate organization and regulation-are incongruous. The theme of restricting non-emergency government services is too broad and general to make these purposes part of the same subject. The prohibition against multiple subjects serves to defeat voter surprise by prohibiting proponents from hiding effects in the body of an initiative. It also discourages placing voters in the position of voting for some matter they do not support to enact that which they do support. Initiative # 55 presents the possibility of both prohibited practices."
* ON WHY FAILING TO SPECIFY WHICH GOVERNMENT SERVICES WILL BE REVOKED IS UNSATISFACTORY:"The Initiative's failure to specify any definitions, services, effects, or purposes makes it impossible for a voter to be informed as to the consequences of his or her vote. This facial vagueness not only complicates this court's attempt to understand the Initiative's subjects, but results in items being concealed within a complex proposal as prohibited by the single subject rule."
* ON THE RELATIONSHIP BETWEEN DECREASING SERVICES AND REDUCING SPENDING: "[T]here no doubt exists a diversity of approaches and attitudes regarding the presence of the individuals targeted under this Initiative. Some voters may indeed wish to both reduce taxpayer expenditures for services benefiting individuals, such as medical and social services, and also restrict unrelated administrative services such as recording services that may inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict services while only wishing to reduce taxpayer expenditures for medical and social services. The common means of restricting non-emergency services insufficiently connects the subjects of reducing taxpayer expenditures and prohibiting the targeted group from participating in administrative services. Thus, the purpose of reducing taxpayer expenditures by eliminating expenditures on behalf of individual welfare for the targeted group is not dependent on and clearly related to the purpose of restricting access to administrative services."
*ON WHETHER THE PETITION CONTAINED A SINGLE SUBJECT:"Unlike lengthy, detailed, or convoluted regulatory measures, easily capable of hiding disparate subjects or combining them solely to increase voting power, the substantive provision of Initiative # 55 contains a single mandate, clearly expressed in a single, concise sentence. Consistent with federal law, government is required to restrict non-emergency services to those whose presence in this country is lawful. The majority, however, is able to characterize even this straightforward provision as containing multiple subjects, by parsing the motivation or objective of the proponents and treating each of its component parts as a separate 'subject.'"
*ON THE MAJORITY'S BROAD INTERPRETATION OF THE SINGLE SUBJECT RULE:"[T]he majority unself-consciously equates the constitutional requirement that each initiative be limited to a single subject with a requirement that each initiative be motivated by a single objective or purpose in the minds of its proponents. By finding (through examination of the Defend Colorado Now website) that the proponents consider it fundamentally unfair for illegal residency in this country to be facilitated by access to taxpayer-provided services and, moreover, that the services to be denied persons here illegally include not only non-emergency police, fire, and medical services but non-emergency administrative services as well, the majority concludes that the proposed measure contains at least two distinct subjects. Apparently inferring that restricting non-emergency police, fire, and medical services adversely affects the welfare of those to whom the restriction applies while restricting other kinds of non-emergency services does not, it characterizes these two purposes, or 'subjects,' as 'decreasing taxpayer expenditures' by 'terminating services benefiting the welfare of individuals' and 'restricting unrelated administrative services.'"
*ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"[T]he majority might just as easily have found that the proposal was motivated by a host of other reasons, including the deterrence of unlawful presence in the state, it's clear and expressed ultimate objective. 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. And according to the majority's logic, each such 'purpose,' apparently constitutes a 'subject' of the initiative. The constitutional limitation itself, however, does not purport to examine the hearts of those advancing an initiative but merely prescribes the form an initiative must take for it to be considered by the electorate."
* ON THE ARBITRARINESS OF THE MAJORITY'S STANDARD:"Surely any provision expressed with sufficient generality to be appropriate for inclusion in a constitution will necessarily have a potential for, and be intended to have, multiple effects. Such a construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process. Nothing in the language or history of the single-subject requirement for popular initiatives or, for that matter, the identical limitation on statutes enacted by the general assembly, remotely suggests that in addition to being limited to a single subject, a proposal can also have but one, identifiable impact or effect; and any such requirement, if applied uniformly, would preclude all but the most trivial popularly-initiated proposals."
*ON TRUSTING THE WISDOM OF THE VOTERS OVER THE COURTS:"The right of the initiative appears to have been reserved to the voters, by our constitution, precisely for the purpose of providing them with a means of overriding the policy choices of their elected representatives (as well as the constitutional interpretations of the judiciary) and a means of prescribing measures they expect will more effectively accomplish their goals. There can be little doubt that certain formalities will always be indispensable to ensure that the will of the voters is actually expressed in their vote; and regardless of the wishes of the electorate at any point in time, the law of this jurisdiction will necessarily remain subject to the supremacy of the federal constitution. I do not believe, however, that the single-subject requirement can fairly be construed to assign to this court the role of screening from the voters any measure the full impact of which it considers them unable to appreciate; nor do I believe it is possible for judicial officers, however conscientious, to apply a standard as amorphous as the majority obviously considers the single-subject requirement to be, without conforming it to their own policy preferences."
In a voter-driven ballot measure that, if successful, would have required "English Language Education in Public Schools," Justice Hobbs writing for the majority, recognized the additional, unstated purposes present in the amendment of constraining school boards' traditional power to require bilingual education in public schools. It also found, however, that this effect was not a subject separate from the initiative's central theme of requiring English language instruction. Rather, the purpose of constraining school boards' traditional powers was “a logical incident of adopting structured English immersion.” Therefore, the majority opinion, via Justice Hobbs, found the initiative did not violate the single subject requirement.
