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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....

lralston (mail):
Thank you, agree with your dissent and appreciate your presentation of the issue.
6.12.2006 9:22pm
jgshapiro (mail):
The idea behind the single subject rule is to prevent two things.

The first is vote-trading by special interest groups. Say the VC and other conservative bloggers support a proposal that collectively would command only 10% of the popular vote. So they bundle that proposal with one that would be supported by textile manufacturers and would (work with me here) command 25% of the vote, and another that would have the support of senior citizens and bring along 20% of the vote. The hope is that the seniors won't care about the textile and blogging proposals, the textile companies won't care about the senior citizen and blogging proposals, etc. Individually the proposals would fail, but together they would get 55% of the vote.

The second is the attachment of unpopular riders to proposals putting forth a popular idea. Most people would ordinarily vote againt the former, but may not if they also have to vote against the latter.

The irony of the single subject rule (even in these instances) is that you see these tactics used all the time in legislatures, so if professional lawmakers can trade votes or attach riders to popular measures, why not Joe Sixpack and his fellow travelers?

But I cannot see the logic behind using the rule under the circumstances in Colorado. It appears to be an attempt by the Court to nix a proposal they don't like using a procedural pretext to avoid any backlash from would-be supporters. It's not the first time this has happened (e.g., see Georgia and Oregon), and it probably won't be the last, but there is really no recourse when the State SC does this except to call their bluff: propose it again as two measures and bet the Court wouldn't dare get in the way twice.
6.12.2006 9:46pm
The Drill SGT (mail):
The intent of concepts of Recall, Initiative, and Referendum found in several of the Western states dates to a populist revolt against Oligarchical control of state legislatures. Beyond coming back at them with two initiatives, there is always the Recall of Judges option, though that's not going to happen in this case.
6.12.2006 9:53pm
Steve Podraza (mail):
Volokh loses points for using the word "troubling". Ugh.
6.12.2006 11:30pm
Realist Liberal (mail):
While I really don't like this proposed law, I think it is patently dishonest to argue that this law violates any rule against multiple issues. As Prof. Volokh points out, several laws end up having multiple reasons or effects but that does not mean that they are multiple issues. This sounds like judges not liking a proposition that is probably going to get passed so they strike it down. That is the epitome of judicial activism.
6.12.2006 11:31pm
ReaderY:
Does this decision mean that amendments susceptible to liberal interpretations -- particularly broad, amorphous guarantees of rights like "due process" or "privacy" -- will be struck down because they provide more than one specific right and hence concern more than one subject?

How can the amendment requiring amendments to be on the same subject be self-consistent, since it applies to amendments on many subjects?
6.12.2006 11:39pm
Rob Lyman (mail):
So, my proposed law is:

1) It shall be unlawful to do X

2) Any person who does X shall upon conviction be sentenced to a prison term of not less than 30 days and not more than 1 year.

Apparently, I've violated the "multiple issues" rule because I not only am forbidding people to do X, but requiring the expenditure of taxpayer money to imprison them. Also, I'm demanding that the person be provided certain "administrative services" such as medical care while in prison. That's at least 3 separate issues, each requiring a separate vote.

Huh? This decision is less "troubling" than it is "boneheaded and/or dishonest." I realize that complaints about "judicial activism" are vague and often unhelpful, but what should we call this?
6.12.2006 11:41pm
Billll:
The logic was tortured untill it yielded up the desired result.
6.12.2006 11:44pm
The Voice of Reason (mail):
I thought this is exactly the kind of activism that the Federal Marriage Amendment was designed to prevent: state courts using these "single-issue" provisions to invalidate ballot initiatives that ban gay marriage.
6.12.2006 11:48pm
ReaderY:
Given that there's an identical single-subject provision for legislative enactments, defense lawyers ought to appealing every statute as a matter of course. I can't imagine a punishment scheme that couldn't have been intended to serve multiple purposes -- deterrance, rehabilitation, punishment, fairness, etc. -- and thus be patently unconstitutional, unenforcable, and void under the Colorado Constitution.

Fines, in particular, both impose punishment and save money. Taxation schemes similarly serve multiple purposes. I can't imagine there'd be a law left standing.
6.12.2006 11:50pm
trotsky (mail):
As far as I understand, in California the courts will not consider the constitutionality of an initiative until after it has passed.

Whatever the merits of this decision, it seems to save everyone time and effort not to campaign for an illegal ballot measure that will be tossed out anyway.
6.13.2006 12:12am
logicnazi (mail) (www):
On first glance I have to say I found this ruling troubling for exactly the reasons outlined in your response. However, upon reading the part of the deciscion you quoted I have to admit I found the analysis quite compelling.

In particular my initial grounds for thinking this ballot measure was perfectly valid and a one subject measure was exactly because I assumed that non-emergency services refered to non-emergency social services. Thus regardless of whether the measure violates the multiple issue restriction it is certainly misleading or at least confusing. I presume most people who read the measure would interpret it as I did at first, namely denying state support or benefits, not denying illegal immigrants in colorado the ability to engage in fully private transactions that the state has choosen to insert itself into (the transfer of title for car ownership).

Now I think it would be preferable for the colorado state supreme court to have struck down this measure on some sort of vagueness or provision against misleading measures but if these aren't availible to them it seems totally valid to say that denying illegal immigrants the ability to transfer the title to cars because this would implicitly require state services is a different issue than denying them social services and benefits. Moreover, this fits perfectly within the intent of this clause to prevent unnecessery riders or unpopular provisions from passing because they are attached to more popular measures. If the state supreme court reasonably believes (as I do) that most people voting for this measure would be trying to deny illegal immigrants social services and benefits but the measure would incidently also deny them administrative rights then this seems to fit squarely inside the courts mandate to deny multiple issue initiatives. Moreover, it seems perfectly reasonable to be more lenient on the multiple issue question to initiatives which clearly spell out what they are going to do than with iniatiatives which have a dual impact that is unforseen by the voters.

On a larger issue I am bothered by the mindset that would label this sort of court deciscion as troubling. Certainly if you are a colorado resident who favors this initiative in all its effects then you have a reasonable disagreement with the court. However, I take this criticism to be a broader complaint which denys that it is appropriate for courts to be a co-equal branch of government which excercises disgression when they see an initiative that might, through confusing wording, subvert legislative intent. It seems to me that the people of colorado have choosen to create a judicial branch with considerable power to interpret their constition and make rulings. Moreover, the people of colorado (indirectly) appoint these justices and if they have problems with them they can elect representatives who will appoint other judges. So I just don't see the issue with the judges participating this way unless their ruling is obviously outside the bounds of reasonablenesss (which I argued above is not the case in this situation).

Or in short it simply isn't the case that the direct will of the people is always what the government should do. Sometimes it is appropriate for the people's will to be denied or for their voice to only have influence indirectly. This is why we have constitutions that mere majorities can't change in the first place. So I don't see the problem with letting states have branches of government with considerable power which aren't directly elected.
6.13.2006 12:13am
Robert West (mail) (www):
Trotsky - your understanding may be correct in the general case, but there have been cases in California of initiatives being removed from the ballot prior to the election for violating the single-subject rule. The most famous recent case was Proposition 24, which would have altered the rules for both legislative redistricting and legislative pay increases.
6.13.2006 12:23am
The Voice of Reason (mail):

LogicNazi the Inconsistent: "Or in short it simply isn't the case that the direct will of the people is always what the government should do. Sometimes it is appropriate for the people's will to be denied or for their voice to only have influence indirectly."



Yeah, so explain your argument over in the "First Amendment = Government Employees Should Leak All Day Long Instead of Work" Thread.
6.13.2006 12:31am
Brett Bellmore (mail):

Whatever the merits of this decision, it seems to save everyone time and effort not to campaign for an illegal ballot measure that will be tossed out anyway.


More like a legal ballot measure that they would have tossed out anyway. This is well outside the bounds of reasonableness, you'd be hard put to draft ANY initiative that couldn't be thrown out based on this level of sophistry.

Seems to me the only appropriate response IS to recall the judges in question. Of course, that could be interpreted as having two purposes, removing them, AND clearing the way for a repeat of the initiative.

I wonder if they'd throw the recall off th ballot on that basis?
6.13.2006 12:55am
Christopher M (mail):
I'm with LogicNazi; I'll defend the decision.

Begin with the fact that many constitutional provisions are vague, and require a great deal of interpretation to put them into practice. The Equal Protection Clause, for example -- what the hell is "equal protection," anyway? How should that phrase get cashed out into solid, usable doctrine? That question doesn't have a single determinate answer; rather, fleshing out the answer requires tough choices that are both legal and political.

Now, for better or worse we let legislatures and constitutional conventions enact provisions at such a level of abstraction and vagueness -- among other things, it would be hard to reach agreement on a constitution if every provision had to read like the tax code or a careful statement of doctrine.

But, there may be (and I think, probably are) good reasons not to let ballot initiatives operate at that level of abstraction. There are already enough problems with ballot initiative drives becoming contests of who can spend more on advertising or who can come up with more effectively misleading ways to frame the initiative. If we're going to have ballot initiatives at all, it's probably worth requiring them to be very specific about what they're going to do.

And this proposal clearly wasn't. Like logicnazi, I would instinctively have thought about this as a proposal to deny social services, welfare programs, educational support, etc., not as a proposal effectively to turn illegal aliens into legal nullities who can't transfer property, etc. Of course almost every new legal rule will have "multiple effects," but the point is that ballot initiatives should not be permitted if they'll have major "effects" that probably won't be in the contemplation of a voter who casually reads the proposed rule. I'm not sure the court phrased that principle as well as it could have, but it seems to be what the decision is getting at, and it seems eminently defensible.
6.13.2006 1:10am
Christopher M (mail):
Or in fewer words: The dissent complains that the majority's "construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process."

To which I say: I hope so. That's a feature, not a bug.
6.13.2006 1:13am
Questioner:
I'd be very interested to find out if the judges who voted in the majority in this case would, themselves, be capable of writing a revised proposition that survives their alleged concerns...
6.13.2006 1:48am
The Voice of Reason (mail):
But, there may be (and I think, probably are) good reasons not to let ballot initiatives operate at that level of abstraction.

Fine, you support a man who calls himself a LogicNazi; I will support Eugene Volokh. The decision is "troubling" because any judge can always render any ballot initiative "abstract" by parsing it in a hyper-legalistic fashion. Which means no referenda pass unless a friendly judge agrees with it substantively, which means direct democracy, which is the freaking point of a referendum, is utterly subverted (and instead requires long-term political control over either judicial elections or the judicial appointments process in Colorado). This is worse than a Roe or a Roper; this is the people speaking directly and in force right now and a judge overturning that mandate on a whim by playing word-games unworthy of Wittgenstein at his most warped or Voltaire at his most arrogantly question-begging.

Like logicnazi, I would instinctively have thought about this as a proposal to deny social services, welfare programs, educational support, etc., not as a proposal effectively to turn illegal aliens into legal nullities who can't transfer property, etc.

Then you haven't been paying attention to Colorado politics. But, then, you aren't a Coloradan. And your vote wasn't invalidated. What you would instinctively prefer, or think proper, is utterly irrelevant. And, since you fail to understand what "equal" means, let me demonstrate: your preferences would be equally irrelevant if you were a Coloradan judge. Direct democracy is supposed to free us from the "instincts" of self-appointed Platonic guardians.
6.13.2006 1:50am
The Voice of Reason (mail):

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.



What person would think this? Anyone who came out to vote for a ballot initiative concerning illegal immigration would think, "Yeah, unless there is an emergency, they get nothing." That is the plain meaning of the words. The judicial construction is just bizarre.
6.13.2006 1:58am
tomjedrz (mail):
jgshapiro wrote ...
... It appears to be an attempt by the Court to nix a proposal they don't like using a procedural pretext to avoid any backlash from would-be supporters.

Undoubtedly.

The "multiple issue" ruling is complete and utter nonsense. If a SINGLE SENTENCE initiative constructed as simply as this one cannot pass the requirement, then no initiative can pass the requirement.

logicnazi wrote ...
Now I think it would be preferable for the colorado state supreme court to have struck down this measure on some sort of vagueness or provision against misleading measures but if these aren't availible to them it seems totally valid to say that denying illegal immigrants the ability to transfer the title to cars because this would implicitly require state services is a different issue than denying them social services and benefits.
So, you think it is OK for the judges rule not based on the law, but rather on their idea of what is "right".

As is also typical of the liberals, rather than allowing the people to decide the issue, these judges have determined that that the voters are not smart enough to know what is best, so they have decided it instead.

Invalidating the measure because the voters might be confused by "non-emergency services" is condescending and arrogant. Any confusion would be properly resolved by the courts.

Is there an avenue of appeal into federal courts, or is this the end of the line?
6.13.2006 2:19am
Daryl Herbert (www):
Apparently, I've violated the "multiple issues" rule because I not only am forbidding people to do X, but requiring the expenditure of taxpayer money to imprison them. Also, I'm demanding that the person be provided certain "administrative services" such as medical care while in prison. That's at least 3 separate issues, each requiring a separate vote.

Huh? This decision is less "troubling" than it is "boneheaded and/or dishonest." I realize that complaints about "judicial activism" are vague and often unhelpful, but what should we call this?


And what are your motivations in wanting to decrease incidences of X? Are you troubled by the effect X has on the community? The cost to clean up after incidences of X? Do you feel bad for the direct victims of X? What about the indirect victims of X? What about the fact that habitually commiters of X damage their own health and future career opportunities?

Or are you really motivated by some sort of religious morality that holds X out as a sin? Are you backing this law for reasons given by the Catholic Church, or because of what the Reform Jewish rabbis said?

Obviously, there are far too many good reasons to restrict X for us to allow you to proceed.
6.13.2006 2:32am
logicnazi (mail) (www):
I notice that "The Voice of Reason" has resorted to ad hominem attacks to defend his position and arguments from authority, "Fine, you support a man who calls himself a LogicNazi". For the record the origin of my handle is from the Seinfeld episode about the soupnazi and is a self-mocking reference suggesting an overly dogmatic/rule-oriented insistence on logical valid points. It obviously does not indicate any sympathy to the murderous political group as one might guess given the Seinfeld origins not to mention my posts.

Now to address the supposed inconsistency between this post and my claim on the other thread. The claim that we have a better government if individuals check the presidents power of classification and secrecy by leaking classified information (when appropriate) simply isn't in conflict with the claim that what is the best form of government is not to always do what the current majority demands. Just the opposite as in the other thread I am specifically arguing that a political minority should have the power to release information that the majority party wants to keep secret despite the fact that a majority of the country may prefer (not knowing this information) that only the president or a congressional majority have the power to leak information.

Ultimately the question is what rules should we put in place which maximize welfare over the long haul. My position is that the best rules are ones that prevent abuse both by individuals in positions of power and by majorities seeking to impose their will on minorities. We allow people to vote and exercise their preferences not because their is some kind of inherent right to a democratic government but rather because the alternative, giving unmitigated power to a small group, has been shown to be worse. Conversely though I think that giving complete power to the majority has nearly as bad consequences hence the best form of government is one which makes sure the people in power have some accountability to the people but protects minority rights and only gives the people indirect control over the government, i.e., essentially the system the founders favored but we have gradually moved away from. Favoring the ability of minorities to leak damning information is perfectly consistent with this scheme as it at once combats the power of office holders as well as giving greater power to political minorities.

As for the counter argument the voice gives the best sense I can make of it is that it claims this decision is bad because a judge overrode the will of the people and once you let a judge do this in one situation it effectively gives the judge veto power over all decisions by the people. However, if you really believed this argument you would object to a judge striking down an initiative which said, 'anyone who votes republican shall be put in jail' despite its obvious unconstitutionality. If you agree that this sort of decision would be justified then you agree that judges should have the power to circumvent the will of the majority and the only question is whether the judge acted properly in this case. However, I have yet to see a response to my argument which gives good reasons to believe that the judge was acting properly in this situation.

The fact that a judge could act in a blatantly illegal fashion and declare things unconstitutional that are in fact not is no more an argument to oppose reasonable judicial actions than is the fact that the congress and president could get together and declare martial law for no reason is a justification to oppose valid congressional/presidential power.

Moreover, the fact that someone who has been watching the news might have an idea what the initiative really does should be irrelevant. If what the initiative seems to claim to do and what it would really do differ significantly that is a problem. Moreover, the more I think about it the more it seems that administrative and social services really are two different things.

Finally your last post undermines your very argument. Yes, most people would think "Yeah, unless there is an emergency, they get nothing." However, since most people don't think of selling a car or buying a house or similar transactions as getting something this understanding does not actually match what the initiative will do.
6.13.2006 2:45am
Salaryman (mail):
Why on earth would anyone be surprised to learn that this measure bars illegal aliens from receiving governmental benefits such as drivers licenses, enforcement of property rights, etc.? "Emergency services" is a sufficiently unambiguous term to survive a court's scrutiny (if it isn't, not much is). Consequently, this court's (and some commenters') professed surprise at the notion that "non-emergency services" could mean "all services that aren't emergency services" rather than "some services that aren't emergency services" seems contrived.

If I decide to illegally emigrate to Mexico, or Malaysia, or Turkey, not only would I not be surprised if the Mexican, or Malaysian, or Turkish governments denied me a deed to a home or commercial property, or refused to issue me a driver's license, etc., but would in fact expect this (and much worse -- the words "Turkish prison" come to mind) to be the case.

Even in America, the notion that illegal aliens ought to be denied state-sponsored administrative benefits is hardly unusual -- Arnold Schwarzenegger won his governorship in part by promising to veto any bill granting illegal aliens drivers licenses.
6.13.2006 3:18am
Salaryman (mail):
Logicnazi: actually, I probably would be a bit disturbed at the reasoning (not the result) if a court struck down an initiative proposing that 'anyone who votes republican shall be put in jail' on the grounds that it violated the single issue rule.

The problem Prof. Volokh and others of us have with this decision is not that we "oppose reasonable judicial actions" but that we find this particular judicial action unreasonable.
6.13.2006 3:44am
tefta (mail):
Operative word is "emergency." Any service provided will include that key word and ipso facto, will be entirely legal. It's the same dodge used to make abortions for any reason legal, "saving the pregnant woman's life," became broadly defined to mean whatever the aborter wanted it to be.
6.13.2006 8:40am
Tocqueville:
Eugene,

As you may remember, this was the precise legal (and bogus) ground on which Georgia's initiative to ban gay marriage was declared unconstitutional on May 16th, 2006 by Fulton County Superior Court Judge Constance C. Russell (saying it violated the single-subject rule in Georgia's constitution).
6.13.2006 9:46am
Zman Biur (www):
I'm no lawyer, but doesn't this sentence:

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


...mean it's up to the assembly to decide what constitutes "non-emergency services"? That's a definition, I presume.

In which case whether or not the restriction extends to registrations, etc., or only encompasses schools, health and welfare, would be up to the legislature. Right?
6.13.2006 9:57am
Dave Hardy (mail) (www):
Court didn't like the initative, so it got struck. End of issue.

Here in AZ, they have the same single-subject requirements for statute. I brought a case challenging a bill that had over a hundred clauses, spanning everything from antique car collecting rules to creating a true sentence of life imprisonment -- no parole, ever (my client's problem). It had something like 24 purposes, most not even dealing with criminal law.

Court wasn't about to strike it, and so just issued an unpublished opinion upholding it.
6.13.2006 10:38am
Bruce Hayden (mail) (www):
One problem here is that the same provision is also supposed to limit what the legislature does, but is (almost?) never interpreted that way. This provision seems to me to have turned into a means for the Colorado political establishment to keep things that it doesn't want off the Colorado ballot (I define political establishment as including the legislature and its lobbyists, including, as I point out below, the League of Women Voters).

There has been a running war between the politicians and the people of Colorado for msot of three decades now (that I remember) over the initiative process. The policians of course don't like it, and the people do. The state constitution has become a mess because there are a lot of things that are in it, that shouldn't be, but are out of fear of the legislature.

One example: the people passed an initiative that would allow the state lottery, with most of the money going to parks, open space, etc. Fine, but then the legislature started "stealing" the money generated by it, within a couple of years most of it having dissipated into other uses, such as prisons. So, the people came back and put it in the constitution, and, as a result, Colorado has developed a great preserve of open space along the front range, a lot of new parks, and, (unfortunately, IMHO), built a lot of very expensive municipal rec centers (putting the YMCA out of business in many cities).

Another great Colorado ballot story: dueling initiatives (or in this case, constitutional amendments). Some 30 years ago thereabouts, the City and County of Denver found itself losing population through population shift to the suburbs. One result was that a lot of the suburbs incorporated in a very short time. But despite this, Denver was annexing on a major basis. The suburbs were not happy (and had more votes). So, two competing amendments went on the ballot, one a bit stiffer than the other, and both somewhat incompatible. Well, they both passed. Together, they put up such barriers that Denver cannot grow, and, except for DIA, hasn't since then (and that was via a county level agreement).

One interesting result is that I believe that the state has a fairly unique constitutional interpretation. Of course, later enacted provisions take precedence over earlier ones. But here, for those provisions that actually do conflict, the ones from the amendment with the greater vote total takes precedence.

In any case, I seem to remember that this single rule was either enacted or strengthened through a lot of work by the League of Communist Women (sorry, Women Voters), when my mother was active there, and, I believe, it was started when she was state legislative chairwoman (and chief lobbyist) for the group. The Colorado League, at least then, and I assume now, is strongly supportive of the legislative process and seems to oppose ballot initiatives, and, in particular, ballot amendments, even to this day. Because of her work there, I remember a lot of dinner conversations about the evils of ballot initiatives and amendments, and how legislation should be reserved for the professionals in the legislature (who presumably were more amenable to the League's lobbyists).
6.13.2006 10:42am
Houston Lawyer:
It would be interesting to know whether the voters in Colorado have the right to remove the supreme court justices. What are they supposed to do when the justices rule in obvious bad faith?
6.13.2006 10:47am
Anderson (mail) (www):
Okay, looking at the proposed language, I thought it meant "medical services," like at a hospital.

So I'm inclined to concur with the majority, LogicNazi, and Christopher M.

(Leaving aside the utterly hateful, unChristian mindset that concocts such a law in the first place. *Allow* local governments to *deny* services, arguable; *forbid* them to *provide* services???)

Illegal immigrants: the new gays?
6.13.2006 11:02am
Fub:
Christopher M wrote:
Or in fewer words: The dissent complains that the majority's "construction would clearly bar the due process clause or guarantees of free speech from being considered by the initiative process."

To which I say: I hope so. That's a feature, not a bug.

Perhaps you missed the context of the dissent's point. I don't think the dissent was addressing removal or limiting the free speech or due process provisions by initiative.

The dissent said:
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.
In that context I think the dissent actually means "Such a construction would clearly bar the due process clause or guarantees of free speech from being put into the constitution by initiative process."

I wouldn't find it objectionable to put either provision into a constitution by initiative or any other means, nor do I think you would. I think that was the dissent's point -- that the majority opinion would prevent it.
6.13.2006 11:03am
Hans Bader (mail):
The reasoning of the Colorado Supreme Court is utterly ridiculous. But it's par for the course for this court, which will do anything to favor liberal causes.

The chief justice of this same state supreme court appointed ideologues to a "nonpartisan" state reapportionment commission.

The result was a partisan gerrymander of Colorado legislative districts. Although the Republicans got 60,000 more votes in legislative races than the Democrats, the Democrats took both houses of the state legislature.

So much for "nonpartisan" redistricting.
6.13.2006 11:38am
just me:
This opinion seems to suffer an additional flaw, but I did not see this point addressed in the dissent or anywhere else. It seems to me that the single-subject rule (SSR) should perhaps apply to INITIATED STATUTES, just as it does to legislature-passed statutes, but the SSR cannot apply to INITIATED CONSTITUTIONAL AMENDMENTS. When the initiative is itself a constitutional amendment, how can it run afoul of another constitutional provision? By being later in time, it can trump the SSR, whether explicitly or implicitly. New constitutional provisions trump old constitutional provisions all the time. Surely the voters could pass a repealer of the SSR wholesale. Also, they could pass one weird amendment that joins two odd topics and add a one-time clause that says "this amendment is not subject to the SSR." Why not?

I admit that I have not looked into whether Colorado requires more for passing initiated constitutional amendments as opposed to initiated statutes, i.e., whether the vote must be more than 50% or any thing. Maybe constitutional changes should have a higher threshold as a policy matter. But the bottom line is that constitutional provisions trump statutes, but old constitutional provisions do not trump new ones.

If anyone can point me to caselaw anywhere DIRECTLY addressing this -- as opposed to assuming that SSR applies -- please do post it. Otherwise, it waits till the weekend, if ever.
6.13.2006 11:39am
Nobody (mail):
Is the amendment even constitutional? My reading is that in denying administrative services to those who are not "citizens of and aliens lawfully present in the United States of America," it would deny such services even to those NOT PRESENT AT ALL in the US.

Example: I (a US citizen) buy a house in Colorado. I borrow the money from my father, a UK citizen who has never set foot in the US. I give him a mortgage. His attorney in Denver seeks to record the mortgage. Under the proposition, my father, who is neither a US citizen nor an "alien lawfully present in the US" may not record the mortgage.

Second example: I am a Canadian citizen who attended college in Colorado with a student visa. My visa has expired and I have returned to Canada. I am applying to become a member of the bar in Ontario, and I am required to provide letters from the police departments of every place I have lived since age 18, attesting that I don't have a criminal record. (The bar in Pennsylvania, among other places, has similar requirements.) I am neither a US citizen nor an alien lawfully present, so the police department in Denver can't provide the letter.

Third example: I am a Danish tourist who visits Colorado on vacation. When I return to Denmark, I realize that I misplaced my wallet while visiting Colorado. I call the Denver PD and learn that, miraculously, someone has turned my wallet in! I send a self-addressed stamped envelope to the Denver PD so they can return my wallet. They're not allowed to drop it in the mail.

Fourth: I am a Mexican citizen who is kidnapped in Acapulco and taken to Colorado. The Boulder PD raids the kidnappers' lair and frees me. (Thank god they can help in emergencies!) I am naked and penniless. The Boulder PD is not allowed to help me get in touch with my embassy--it's no longer an emergency!

Fifth: I am an Israeli citizen. My uncle in Colorado dies and bequeaths to me his real estate in Colorado. The state gov't is not permitted to record the deed.


I could go on and on. This proposal is retarded. The language of the initiative provides none of the flavor of the foregoing. It is deceptively drafted. I, a reasonably savvy attorney, read the proposition and did not pick up on the fact that it would deny administrative services. The lay electorate can not possibly be expected to pick up on it. The Court did the right thing.
6.13.2006 11:46am
Christopher M (mail):
Fub--

I wouldn't find it objectionable to put either provision into a constitution by initiative or any other means, nor do I think you would.

I would, actually, for reasons I explained in my first comment above -- basically, those provisions are vague and open-ended, and I think if we're going to have ballot initiatives at all, they should have to be very specific and obvious in their implications.
6.13.2006 12:02pm
Rob Lyman (mail):
Nobody,

In what sense is being "retarded" violative of the SSR? In my "unlawful to do X" example, it might be "retarded" to, say, ban possession "any implement that can be used to inflict injury," including plastic sporks from KFC. This does not mean the law covers more than a single subject, just that it's stupid.

It's up to the opponents of an initiative to point out that it's "retarded" for all the reasons you cite (and thereby defeat it at the polls), not up to the courts to protect us from laws things they consider mistaken. Democracy, you know?
6.13.2006 12:06pm
Nobody (mail):
The proposal isn't unconstitutional b/c it's retarded. Its retardedness is an extra added attraction.
6.13.2006 12:28pm
Russ Meyer (mail):
God forbid that the people of Colorado actually have a say in making their own laws. Nope, we need super-genius judges who know better than any of us to decide which laws we can and can't vote on. We are all just amoeba minded simpletons anyway.
6.13.2006 12:49pm
Robert West (mail) (www):
just me - the single subject rule can and does apply to constitutional amendments, because it is a rule governing what can appear on the ballot as an initiative. That is, the SSR can be used to prohibit the Secretary of State from placing the amendment on the ballot, whether or not it can legitimately be used to prohibit the amendment from being added.
6.13.2006 12:52pm
just me:
Thanks to Mr. West for setting me straight. I had mistakenly looked at only the general SSR, contained in Art. V, Sec. 21 (Bill to contain but one subject ­ expressed in title. No bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title; . . .).

But I see that Colo has a 2d SSR, specifically aimed at ballot issues, in Art. V, Sec. 1(5.5), and that's what the Colo. Sup. Ct. was dealing with. So I retract all of what I said about a second flaw, and that teaches me to read all the materials before commenting.

I suppose the point might matter in a State that has only a "regular" SSR, and not a ballot-specific SSR at a constitutional level, but it does not matter in Colorado. And I did check Georgia, and they, too, have a ballot-specific SSR, thus triggering the same-sex marriage case that another commenter mentioned.
6.13.2006 2:02pm
Kurt Kastorf:
"One problem here is that the same provision is also supposed to limit what the legislature does, but is (almost?) never interpreted that way."

Bruce - you are correct that in most states, the single subject rule, as applied to the legislature, has been interpreted very laxly. That it is being applied with some force in the context of direct democracy is a recent development. If you're interested, in a recent paper I flesh out in some detail arguments for why this change is GOOD, e.g. that the rule should be interpreted differently in each context. You can take a look at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=826124

This paper also takes issue with Dan Lowenstein's argument that Professor Volokh mentions in his post that the single subject rule is inherently unenforceable. See particularly Note 252 and accompanying text.
6.13.2006 2:16pm
Fub:
Christopher M wrote:
[fub wrote, of due process and 1st Amendments:]
I wouldn't find it objectionable to put either provision into a constitution by initiative or any other means, nor do I think you would.
I would, actually, for reasons I explained in my first comment above -- basically, those provisions are vague and open-ended, and I think if we're going to have ballot initiatives at all, they should have to be very specific and obvious in their implications.
Then I misunderstood the breadth and depth of your objection to constitutional amendment by initiative. Thanks for clearing my misunderstanding.
6.13.2006 2:31pm
Michelle Dulak Thomson (mail):
logicnazi,

Moreover, the fact that someone who has been watching the news might have an idea what the initiative really does should be irrelevant. If what the initiative seems to claim to do and what it would really do differ significantly that is a problem.

I don't know about CO, but here in CA voters get sample ballots containing legislative analysts' accounts of what each proposed initiative would do, arguments for and against each initiative by the respective "yes" and "no" campaigns, and rebuttals to these arguments by the same campaigns. That seems enough for an ordinary voter to be getting on with.

Moreover, the more I think about it the more it seems that administrative and social services really are two different things.

Except when they aren't. Which is a driver's license, for example?
6.13.2006 2:53pm
jgshapiro (mail):
Nobody:

If the administrative portion of the proposal is unconstitutional, it could be challenged as such after the amendment passed (assuming it passed) and it could be struck down as applied to the circumstances you raise. It is undoubtedly constitutional with respect to some administrative services, such as driver's licenses, professional licenses and business licenses, the prohibition of which to illegal immigrants is consistent with the intent of the amendment: that illegal immigrants not receive benefits and rights provided to those legally present in the U.S., except in the case of an emergency.

Refusing to let people vote on the amendment, though, on the theory that they cannot be trusted to understand that the proposal goes beyond restricting benefits, infantalizes the public and undermines the entire direct initiative process. Perhaps a better approach would have been for the Court to sever what it considered to be the two proposals and let the people vote on each separately. But of course, the point was not really to clarify the issues - if any clarification was necessary - but to create a pretext for shuttling the whole thing. Mission accomplished.
6.13.2006 3:54pm
Salaryman (mail):
Maybe administrative and social services are two different things, but that's not the distinction the proposed initiative makes -- it makes the distinction between emergency and non-emergency services.

Frankly, other than the general criticisms of the initiative process (which I understand), I don't get the controversy here.

Either things like provision of drivers licenses, deeds to property, etc. are government services or they're not. If they're not services, the initiative doesn't reach them and there's no single issue problem (or at least, not the problem identified by the Court) for that reason alone. If they are, the only issue is "are they emergency or non-emergency services."

The fact that "non-emergency services" may include things that in the opinion of the Colorado Supreme Court or commenters on this blog do not immediately spring to mind does not mean that the initiative addresses more than one issue. Arguably, EVERY legislative enactment has (a) potential effects that are immediately apparent; (b) potential effects that are apparent only after some thought and analysis; and sometimes (c) potential effects that are apparent only after some unusual and unforeseen factual circumstance prompts a lawyer to make a creative argument. Does that mean (as this opinion would suggest) that every legislative enactment treats more than one issue?

To the extent that voters imperfectly understanding the implications of an initiative is a problem (and it is, but no moreso than having legislators imperfectly understand the statutes they pass), it is not a problem that can or should be solved by application of the single issue rule. Rather, the solution is to have interested parties inform voters of the problems with a proposed initiative, to the extent that sort of thing is still permissible under McCain-Feingold.
6.13.2006 3:58pm
18 USC 1030 (mail):
I think Nobody may have hit the nail on the head. I, in reading the proposal the first time, did not even think about the case of a non alien--not located in the US, yet having fidicuary interest in the US. The bill appeared to me be an attack on illegal immigrants, in order to address the hot topic of the day. However, it also effects the rights of those not in the state of Colorado or the United States at all.

I do not believe "non-emergency" is too vague in its application that it ought to be considered multi-issued. But, in a sense, I think this was multi-issued in that it could effect the rights of those illegally in Colorado, as well as those not in the United States. Thus, there were multiple issues-- those unlawfully in the United States as well as those not in the country at all.

Furthermore, the bill would seem, as Nobody suggested, unconstitutional as it deprives rights to those not in the United States that would, ordinarilly, according to federal law, have rights.
6.13.2006 3:58pm
Bob Loblaw (www):

Except when they aren't. Which is a driver's license, for example?
Administrative. Not even a close call.

The opinion is horribly flawed, but jesus, what a repugnant initiative.
6.13.2006 5:49pm
NY (mail):
18 USC 1030,
Furthermore, the bill would seem, as Nobody suggested, unconstitutional as it deprives rights to those not in the United States that would, ordinarilly, according to federal law, have rights.


Kindly note that the first clause of (1) says that "unless as mandated by federal law", so yours, and presumably Nobody's, nitpick is misguided. If some "right" is mandated by federal law, it is avoided by that clause, yes?

It certainly is not multi-issued because it could apply to resident aliens and non-resident aliens. It might be overbroad. If its application to non-residents is a wholly separate issue from resident aliens, doesn't that strike down most of CO law? If the law applied to US residents, and Canadian and Mexican aliens, does that mean it's triple-issued?

How wrong are you that you must torture the logic and the words so, just to merely be in the neighborhood of right?
6.13.2006 6:13pm
GMS (mail):
The decision is "troubling" because it is so manifestly cynical and is not subject to neutral application. Under the majority's approach, any ballot initiative can be sliced and diced to characterize it as addressing more than one subject. So the determining question becomes, do the judges want to so characterize it -- i.e., do they favor the initiative or not? And that is no way to run a constitution.

I've always felt that state supreme courts are the most results-oriented courts around. They are much less high-profile than the U.S. Supreme Court, so they can get away with things more easily. They tend to view themselves as the "guardians" of the law (as well as the regulators of the legal profession). And they can evade reversal by simply "interpreting" the state rather than the federal constitution. I think the only remedy is push-back by the voters, whether through recalls, elections, or whatever.
6.13.2006 6:43pm
NickM (mail) (www):
The majority's decision is troubling because it replaced a "single subject" rule with a "single purpose" rule of its own invention. Virtually every law can be said to have multiple purposes, making a "single purpose" rule effectively a ban on initiatives. The Colorado Constitution contains no such ban, nor any such rule.

The ability of a judicial majority to arrogate power to itself by stripping powers from other branches or from the people, and to claim the last word, makes the judiciary potentially the most dangerous branch.

Nick
6.13.2006 7:07pm
Bruce Hayden (mail) (www):
I can't remember if anyone above pointed out that the Colo. Supreme Ct. approved an almost identical initiative some two years ago. They also sat on the case for a number of months after all briefs were due, long enough that it is now too late to resubmit it in time for this Nov. election.

I am not sure how I would have voted on it. I can see arguments on both sides. But I am really troubled by the Supreme Ct. and the legislature here trying as hard as they can to thwart citizen democracy in the form of ballot initiatives and amendments. This isn't new - as I pointed out above, the League of Women Voters here in CO has been trying for decades to curtail, if not eliminate, these to the extent possible. Ditto the legislature for at least a decade.
6.13.2006 8:29pm
Bob Loblaw (www):

I can't remember if anyone above pointed out that the Colo. Supreme Ct. approved an almost identical initiative some two years ago.
For what it's worth, in that case the petitioner didn't argue to the Colorado Supreme Court that the initiative violated the multiple subject rule. In this case the petitioner did make that argument.
6.13.2006 8:44pm
ReaderY:
If the Colorado Supreme Court mysteriously finds multiple purposes for some laws but not others, can opponents claim their actions deny (federal) Equal Protection? The Colorado Supreme Court would singling out some political groups but not others, and preventing selected groups from expressing their will democratically.
6.14.2006 3:14am
David M. Nieporent (www):
Christopher M:
But, there may be (and I think, probably are) good reasons not to let ballot initiatives operate at that level of abstraction. There are already enough problems with ballot initiative drives becoming contests of who can spend more on advertising or who can come up with more effectively misleading ways to frame the initiative. If we're going to have ballot initiatives at all, it's probably worth requiring them to be very specific about what they're going to do.
It may be all well and good to "require" them to be such. But Colorado doesn't do so. All it requires is that they deal with a single subject. Which this clearly does.

If the Colorado courts were to strike down this law, or (more appropriately) a particular application of this law after it passed on vagueness grounds or equal protection grounds or due process grounds or the like, that would be one thing. But the court did not do so here. It simply invented a new rule. Taking a page from the Kelo Court which pretended that "public use" actually said "public benefit," the Colorado Supreme Court pretended that "single subject" actually said "single purpose" or "single effect." It doesn't.


Nobody:
I could go on and on. This proposal is retarded. The language of the initiative provides none of the flavor of the foregoing. It is deceptively drafted. I, a reasonably savvy attorney, read the proposition and did not pick up on the fact that it would deny administrative services. The lay electorate can not possibly be expected to pick up on it. The Court did the right thing.
You make the same mistake as Christopher M. First, people are allowed to pass "retarded" laws. Second, assuming arguendo that they are not (for instance, because a law violates the equal protection clause), your point is irrelevant, because that isn't what the Colorado Supreme Court did. It did not say "This law is retarded" or "This law violates Due Process" or the equivalent. The Court said, "This law would violate the single subject rule." It clearly does not.
6.14.2006 3:35am
David M. Nieporent (www):

The decision is "troubling" because it is so manifestly cynical and is not subject to neutral application. Under the majority's approach, any ballot initiative can be sliced and diced to characterize it as addressing more than one subject. So the determining question becomes, do the judges want to so characterize it -- i.e., do they favor the initiative or not? And that is no way to run a constitution.
Indeed. Try to craft an amendment, or set of amendments, to accomplish what this one does, without running afoul of the Colorado Supreme Court's new definition of "single subject." I dare anybody to do so. It can't be done.

I guarantee I can parse any phrasing to have multiple "purposes."
6.14.2006 3:39am
The Voice of Reason (mail):
Dear Mr. LogicNazi,

Unlike your try at resolving the inconsistency of your myriad positions, there is nothing vague about my claim that "The decision is 'troubling' because any judge can always render any ballot initiative 'abstract' by parsing it in a hyper-legalistic fashion." Using cheap word games to raise or lower the level of generality has been discussed in Bowers, Cruzan, Michael H., Glucksberg, and Lawrence. If my argument was incomprehensible to you, then perhaps you should go to law school. Furthermore, you fail to grasp that "majorities imposing their will on minorities" is called "democracy". Majority rule is the norm. If most of our representatives vote for ethanol subsidies, then we'll have ethanol subsidies. Had you even tripped over a copy of the Federalist Papers, or read a newspaper, you would recognize that. Your claim that government employees who violate their government contracts with unauthorized leaks are "minorities" in the sense of Carolene Products footnote 4 is delusional. Even sillier is your fantasy that illegal immigrants count as minorities in a Colorado plebiscite unless you advocate in favor of voter fraud. You seem to be attempting to make the argument that referenda blindly empower the majority to discount numerical minorities likely to be affected by the outcome. But if this is a sound basis for invalidating a referendum, then all elections are suspect, for children vote in no elections, constitute a numerical minority, and are affected by electoral outcomes. What's more, if children are a numerical majority of the population, all elections would be even more suspect under your theory, because, under your theory, a numerical minority of adults telling kids what to do resembles apartheid-era South Africa. Even Heidegger would call your position nonsense.

That a reasonable person voting for the ballot under discussion would read its plain lanaguage in "manner X" instead of "abstruse manner Y" is certainly relevant to the analysis. That the news reports broadcast all over the state made clear that the ballot initiative meant X and that, say, 99.9% of the people who came out were fervent supporters of an initiative they knew meant X certainly is relevant to the analysis. If you didn't get the point of the argument ("The decision is 'troubling' because any judge can always render any ballot initiative 'abstract' by parsing it in a hyper-legalistic fashion."), language exists in the public square and social reality, not in the private study of an armchair linguist. The plain meaning of the ballot's words is clear. But perhaps you do not understand plain meaning, as is reflected in this utterly illogical statement of yours: "However, since most people don't think of selling a car or buying a house or similar transactions as getting something this understanding does not actually match what the initiative will do." Really? All sellers of cars think they are getting something in exchange (e.g., profit); all buyers of houses think they are getting a house. Clearly, you are such an incompetent interpreter of language that you do not even understand the plain and ordinary meaning of "to get". Boy, you should be a judge in Colorado!
Or perhaps you are not a case of fatal irony (an illogical man who lauds himself for his mastery of logic). Perhaps you are deliberately casting my argument as more abstract than it is, because you do not agree with it substantively, but lack any credible or intelligible reply. Let me spell it out for you so that it is no longer abstract, even for you. No, it is not that "judges is bad". It is that there was no valid legal authority for the action; and if that is "an appeal to authority," then so be it. It is utterly invalid to hold that Colorado law does not permit referenda under any conditions, which is what the judicial act herein establishes. The judicial act in this case, which is of a type to be replicated effortlessly in any circumstance on the whim of any judge, defeated the clear purpose of an intelligible ballot initiative. The jurisprudence behind that judicial act must be incoherent, because Colorado judges are constrained by Colorado law and referenda are provided for by Colorado law. That means some referenda must be able to pass; under this standard, such is impossible. This judicial decision amounts to a state constitutional amendment banning ballot initiatives in Colorado. Bruce Ackerman would be proud.

I fail to see how supporting Eugene Volokh's position on this thread is a fallacy. Is Ad Volokhium even Latin?
6.14.2006 3:51am
PJGoober (mail):
LogicNazi, I just want to say I like your name. Voice of Reason, if you think he is a nazi, why don't you have the guts to accuse him in plain english? Why do you merely insinuate with the childish crossing out of the word logic?
6.14.2006 3:03pm
The Voice of Reason (mail):
Calling me childish — now that is an ad hominem. But just to address your attempt at character assassination, I did not call LogicNazi a Nazi because I did not intend to call him a Nazi. The point is that his argument is illogical. I am calling attention to the absence of logic in his position. It is not my fault that LogicNazi minus Logic is Nazi.
6.15.2006 1:02am