Colorado Supreme Court Usurps Legislature’s Role and Authority (again!), claims power to set ‘proper’ school funding amounts

The Colorado Supreme Court’s Mullarkey Majority continues its ongoing pattern of ignoring the clear letter and intent of constitutional law and usurping the proper role and authority of the Colorado General Assembly in its latest ruling (Lobato v. State of Colorado).  The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.

This latest ruling is only the most recent example of the out-of-control Mullarkey Court’s grab for power – claiming the authority to be the ultimate arbiter of ALL political issues in Colorado, authority it does not have under the Colorado Constitution and the rule of law.

A strongly worded dissenting opinion stated that

The Colorado Constitution directs the General Assembly to “provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state,” placing discretionary education questions in Colorado squarely and solely within the legislative ambit. (Lobato v. State of Colorado, dissenting opinion.  Emphasis added).

The Political Question doctrine

This ruling continues the Mullarkey Majority’s ongoing attack on the very basis of our political system of representative government – with three equal branches, characterized by checks and balances on the power of each, exercising distinct and separate roles and authority.  The Mullarkey Court has consistently overstepped its constitutional authority and usurped the powers of the other branches – as well as the rights of the people  – claiming for itself the ultimate power to decide, despite the law, any and all political questions and issues in the state.

The role of the judicial branch is properly restricted to upholding the law – which on occasion requires judicial review of the constitutional permissibility or applicability of laws passed by the legislature, or actions undertaken by the executive.  This concept of judicial review was famously established by the first United States Supreme Court Chief Justice (John Marshall) in the Marbury vs. Madison case.

At the time, although the Supreme Court unambiguously stated that it had the power to interpret the law, Chief Justice Marshall noted that without the restraints imposed by the political question doctrine, “[t]he division of power . . . could exist no longer, and the other departments would be swallowed up by the judiciary.” Speech of the Honorable John Marshall (Mar. 7, 1800), in 18 U.S. (5 Wheat.) app. n.I, at 16 (1820).  (Lobato, dissenting opinion)

The Colorado judiciary – that is, the Supreme Court’s Mullarkey Majority – is well on the way to “swallowing up” the other departments (or branches) of government in Colorado.

As the dissent in Lobato shows:

While it is clearly the province and duty of the judiciary to determine what the law is, the fashioning of a constitutional system for financing elementary and secondary public education in Colorado is not only the proper function of the General Assembly, but this function is expressly mandated by the Colorado Constitution. Lujan, 649 P.2d at 1025 (citing United States v. Nixon, 418 U.S. 683 (1974); Colo. Const. art. IX, § 2).  …

In short, the plain language of the constitutional provision coupled with our precedent strongly suggest that the issue before us has been constitutionally committed to the legislative branch. …

… We have consistently held that “courts must avoid making decisions that are intrinsically legislative. It is not up to the court to make policy or to weigh policy. If we determine that the issue is legitimately one over which the General Assembly has authority, then our inquiry must end.” Town of Telluride v. Lot Thirty-Four Venture, L.L.C., 3 P.3d 30, 38 (Colo. 2000) (citations omitted). …

And, of course, once courts begin to make policy, it is difficult to stop.  (Excerpted from Lobato v. State of Colorado, dissenting opinion.  Emphasis added).

We are witnessing a slow-motion coup d’etat in Colorado by the Mullarkey Majority of the Colorado Supreme Court.  In disregarding the proper judicial obligation to uphold the law (NOT to make policy), the Mullarkey Court, unrestrained, is seizing more and more power. When these unjust justices rule from the bench, they really RULE from the bench…

This continuing power grab CANNOT STAND.  Exercise your rights (while you still have them) – hold the unjust justices of the Mullarkey Majority accountable to the Colorado Constitution and the rule of law.  Exercise YOUR right to vote “NO” on retaining the four unjust justices of the Mullarkey Majority (Justices Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your rights: your right to vote on tax increases, your right to defend your homes and business from seizure by rapacious governments, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”  Support Clear The Bench Colorado with your voice (Sound Off!), your contributions, and “NO” vote on retaining unjust justices in 2010!