The Volokh Conspiracy - Pretty Troubling Decision from Colorado Supreme Court:

The court has just removed from the ballot an initiative that would bar Colorado governments from providing non-emergency services to illegal aliens. The court's argument was that the initiative violated the state constitutional rule that initiatives may not embrace more than one subject.

Here, though, is the initiative text:

(1) Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America.

(2) Any person lawfully residing in the state of Colorado shall have standing to sue the state of Colorado, or any county, city, or other political subdivision of the state of Colorado, to enforce this section.

(a) Courts of record of the state of Colorado shall have jurisdiction to hear cases brought to enforce this section.

(b) The general assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section.

(3) The general assembly shall have the authority to implement this section by definitions and other appropriate legislation.

No multiple subjects here, it seems to me; sections (2) and (3) are basically procedural, as the court agreed, and section (1) focuses on one basic principle: No provision of nonemergency services to illegal aliens.

The majority's opinion strikes me as quite odd:

We identify at least two unrelated purposes grouped under the broad theme of restricting nonemergency government services: decreasing taxpayer expenditures on behalf of the welfare of the targeted group and denying access to administrative services.

First, the Initiative could restrict delivery of medical and social services to persons lawfully present in Colorado. Medical and social services are funded by the taxpayers. Consequently, restricting delivery of taxpayer-funded medical and social services will decrease taxpayer burdens....

Second, the initiative could restrict access to certain administrative services. As noted above, administrative services include a variety of recording services facilitating economic transactions between individuals, such as recording the transfer of real property....

We conclude that these two purposes --decreasing taxpayer expenditures and denying access to certain administrative services --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.

First, this Initiative's omnibus proportions are hidden from the voter. In failing to describe non-emergency services by defining, categorizing, or identifying subjects or purposes, the Initiative fails to inform voters of the services its passage would affect. Because "emergency services" are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of "emergency" would pertain to the single subject of non-emergency medical or social services. In the absence of a definition for "services" or a description of the purposes effected by restricting non-emergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter.

Second, there 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 medical and social services and inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict recording 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....

This strikes me as quite misguided. All constitutional provisions -- the freedom of speech, equal rights for women, a restriction on unreasonable searches and seizures, and the like -- have multiple effects, and serve multiple purposes. The single-subject rule may itself be unnecessary and unadministrable, as my colleague Dan Lowenstein has in the past argued; but to the extent that it's the law, it surely shouldn't be used to set aside proposals that are as coherent (whether or not sound) as the one proposed by Article 55, just because they have multiple effects and multiple purposes.

The dissent, I think, has it quite right (some paragraph breaks added, citations and footnotes omitted):

Although the majority opinion today pays homage to the requirement's dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it 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. Because I believe the single-subject requirement was adopted to protect voters from deception and fraud rather than to limit their right to make public policy directly by constitutional amendment, I respectfully dissent.

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"; and by measuring the homogeneity of those subjects according to the potential impacts or effects of the amendment if the initiative succeeds.

First and foremost, the majority unselfconsciously 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 the purpose for restricting police, fire, and medical services must be solely to save money while restricting other kinds of services must be motivated solely by some other, unrelated purpose, it characterizes these two purposes, or "subjects," as "decreasing taxpayer expenditures" and "denying access to certain administrative services."

Of course, the 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.

In addition, the majority suggests (without making clear precisely how) that a potential for multiple, unspecified impacts or effects also runs afoul of the single-subject requirement, perhaps because unspecified effects themselves amount to hidden subjects, or perhaps because having a potential for multiple effects must demonstrate that any unifying theme will be too broad. But 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.

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.

Whatever one may think of the merits of Initiative #55, when evaluated in terms of the historically and purposefully limited scope of the single-subject requirement, it clearly treats of a single subject and therefore cannot be kept from the voters on that basis alone. I therefore respectfully dissent....

	[Eugene Volokh, June 12, 2006 at 8:00pm] Trackbacks Pretty Troubling Decision from Colorado Supreme Court: The court has just removed from the ballot an initiative that would bar Colorado governments from providing non-emergency services to illegal aliens. The court's argument was that the initiative violated the state constitutional rule that initiatives may not embrace more than one subject. Here, though, is the initiative text: (1) Except as mandated by federal law, the provision of non-emergency services by the state of Colorado, or any county, city, or other political subdivision thereof, is restricted to citizens of and aliens lawfully present in the United States of America. (2) Any person lawfully residing in the state of Colorado shall have standing to sue the state of Colorado, or any county, city, or other political subdivision of the state of Colorado, to enforce this section. (a) Courts of record of the state of Colorado shall have jurisdiction to hear cases brought to enforce this section. (b) The general assembly may provide reasonable and appropriate limits on the time and manner of suits brought under this section. (3) The general assembly shall have the authority to implement this section by definitions and other appropriate legislation. No multiple subjects here, it seems to me; sections (2) and (3) are basically procedural, as the court agreed, and section (1) focuses on one basic principle: No provision of nonemergency services to illegal aliens. The majority's opinion strikes me as quite odd: We identify at least two unrelated purposes grouped under the broad theme of restricting nonemergency government services: decreasing taxpayer expenditures on behalf of the welfare of the targeted group and denying access to administrative services. First, the Initiative could restrict delivery of medical and social services to persons lawfully present in Colorado. Medical and social services are funded by the taxpayers. Consequently, restricting delivery of taxpayer-funded medical and social services will decrease taxpayer burdens.... Second, the initiative could restrict access to certain administrative services. As noted above, administrative services include a variety of recording services facilitating economic transactions between individuals, such as recording the transfer of real property.... We conclude that these two purposes --decreasing taxpayer expenditures and denying access to certain administrative services --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. First, this Initiative's omnibus proportions are hidden from the voter. In failing to describe non-emergency services by defining, categorizing, or identifying subjects or purposes, the Initiative fails to inform voters of the services its passage would affect. Because "emergency services" are commonly defined, as Defend Colorado Now does, as including police and fire protection and emergency room medical services, a voter might well assume that the converse of "emergency" would pertain to the single subject of non-emergency medical or social services. In the absence of a definition for "services" or a description of the purposes effected by restricting non-emergency services, the unrelated purpose of restricting access to administrative services is hidden from the voter. Second, there 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 medical and social services and inhibit property ownership by targeted individuals. Other voters may find, however, they have unwittingly voted to restrict recording 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.... This strikes me as quite misguided. All constitutional provisions -- the freedom of speech, equal rights for women, a restriction on unreasonable searches and seizures, and the like -- have multiple effects, and serve multiple purposes. The single-subject rule may itself be unnecessary and unadministrable, as my colleague Dan Lowenstein has in the past argued; but to the extent that it's the law, it surely shouldn't be used to set aside proposals that are as coherent (whether or not sound) as the one proposed by Article 55, just because they have multiple effects and multiple purposes. The dissent, I think, has it quite right (some paragraph breaks added, citations and footnotes omitted): Although the majority opinion today pays homage to the requirement's dual concerns for secreting unrelated provisions and combining provisions too unpopular to succeed on their own, it 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. Because I believe the single-subject requirement was adopted to protect voters from deception and fraud rather than to limit their right to make public policy directly by constitutional amendment, I respectfully dissent. 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"; and by measuring the homogeneity of those subjects according to the potential impacts or effects of the amendment if the initiative succeeds. First and foremost, the majority unselfconsciously 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 the purpose for restricting police, fire, and medical services must be solely to save money while restricting other kinds of services must be motivated solely by some other, unrelated purpose, it characterizes these two purposes, or "subjects," as "decreasing taxpayer expenditures" and "denying access to certain administrative services." Of course, the 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. In addition, the majority suggests (without making clear precisely how) that a potential for multiple, unspecified impacts or effects also runs afoul of the single-subject requirement, perhaps because unspecified effects themselves amount to hidden subjects, or perhaps because having a potential for multiple effects must demonstrate that any unifying theme will be too broad. But 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. 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. Whatever one may think of the merits of Initiative #55, when evaluated in terms of the historically and purposefully limited scope of the single-subject requirement, it clearly treats of a single subject and therefore cannot be kept from the voters on that basis alone. I therefore respectfully dissent....