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On June 12, 2006, the Colorado Supreme Court refused to allow a ballot initiative that would have denied most state services to illegal immigrants in Manolo Gonzalez-Estay v. Lamm, et.al. The ballot initiative, known as Initiative 55, was the culmination of a three-year effort to address the problem of illegal immigration in Colorado. 

Initiative 55 sought to prohibit the State of Colorado and all cities, counties, and political subdivisions within from providing any nonemergency services to persons not lawfully in the United States. The question before the Colorado Supreme Court was whether Initiative 55 contained multiple subjects in violation of the single subject rule of the Colorado Constitution (Article V, Section 1(5.5)). The majority determined that Initiative 55 only appeared to have a single subject, and it considered the purposes and possible effects of the Initiative to determine whether there was a single subject. The majority primarily held that the single subject rule was violated because the Initiative had at least two incongruous purposes: (1) decreasing taxpayer expenditures to the welfare of individuals not lawfully present in Colorado; and (2) restricting access to administrative services. The justices ruled 4-2, with one abstention, that Initiative 55 violated the single subject rule.

The dissent objected to the majority’s characterization of the “straightforward provision.” It argued, Initiative 55 contained a single concise mandate, which, on its face, contained only one subject: the government must restrict non-emergency services to those lawfully present in the United States. The dissent questioned the majority’s inquiry into the purposes and practical effects of the Initiative. While the majority equated multiple purposes with multiple subjects, the dissenting opinion reasoned that “the constitutional limitation itself . . . 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.”

Initiative 55 proponents blamed the court’s decision on judicial activism and politics, calling the ruling arbitrary and unfair. The proponents of the Initiative had three main criticisms with the court’s ruling. First, the court appeared to broaden precedent by using an expansive interpretation of the term “subject,” thus giving the court significant discretion in single subject cases. Second, only the narrow question of the single subject rule was before the court, yet the opinion went beyond the matter on trial to criticize the measure on other potential constitutional issues. Third, the decision was unnecessarily delayed; the court waited three months to issue this decision, preventing a rewrite before the November ballot deadline.

Days after the ruling, proponents asked for a rehearing, which the Colorado Supreme Court denied with a revised ruling. Believing the court’s decisions were flawed and politically motivated, Colorado Governor Bill Owens called a special session of the Colorado Legislature to address the state’s immigration problem.

The Legislature passed comprehensive legislation, signed by Governor Owens, including two initiatives that will be on the ballot this fall. The initiatives propose to limit tax deduction for illegal alien wages and to demand that Colorado’s Attorney General sue the federal government to enforce federal immigration laws.

The key piece of legislation from the special session was House Bill 1023, which requires state and local agencies to verify the citizenship or legal status of all applicants over the age of eighteen for any public benefits in Colorado, effective August 1, 2006. This new statute denies most non-emergency services to illegal aliens over the age of eighteen. Individuals now seeking public benefits in Colorado must present valid photo identification, and the bill mandates use of the federal Systematic Alien Verification of Entitlement (SAVE) program to determine eligibility for benefits. Due to the efforts of Governor Owens and the Legislature, Colorado now arguably has the toughest immigration laws in the country.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].