Colorado Supreme Court hears arguments in Lobato appeal (the “SuperBowl of School Funding Litigation”)

The Colorado Supreme Court heard oral arguments in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation).
At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $3B additional school funding annually (requested by the plaintiffs), along with an additional $17B in spending on capital construction – and, perhaps even more importantly, a looming constitutional crisis regarding separation of powers and the proper role of the courts in setting taxation and educational policy.

Lobato case argued before the Colorado Supreme Court

(Denver Post, “Colorado Supreme Court hears arguments in school funding lawsuit” 7 MAR 13)

The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. 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.

The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).

In oral arguments before the Colorado Supreme Court, Assistant Attorney General Jonathan Fero challenged Rappaport’s finding that the phrase “thorough and uniform education” in Colorado’s Constitution means that “if any students aren’t making it the whole system is irrational” – stating

“Universal achievement cannot be what the constitution requires”

Plaintiffs argued that because some groups show disparate performance, the state’s educational system is not “thorough and uniform” – and allege that shortfalls in educational outcomes are due to the state’s K-12 educational system being underfunded by $3 billion.  As reported in the Alamosa News coverage of the trial (“Supreme Court to consider Lobato case“),

According to the Joint Budget Committee Appropriations Report 2010-11 and the Colorado Attorney General (AG), K-12 in Colorado receives 45.6 percent of the general fund or $3.2 billion of a $6.97 billion general fund.

A Colorado Supreme Court ruling in favor of the plaintiffs would have “devastating consequences” for the state, according to Governor Hickenlooper.  As summarized by the Alamosa News article,

If the plaintiffs were to win, the state would either have to raise taxes by at least 50 percent or have to devote 89 percent of the general fund budget to K-12 funding to meet this obligation, crowding out things such as Medicaid, unemployment assistance, transportation, public safety and higher education

Assistant AG Fero also emphasized that a court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set policy and violate the constitutionally-defined separation of powers between branches of state government (an issue at the heart of the dissenting opinion in the 2009 ruling, as contemporaneously noted by Clear The Bench Colorado:

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).

A court ruling in favor of the plaintiffs “could alter the relationship between the people of Colorado and their government for decades to come” – since

One of the plaintiffs’ main arguments is that the Taxpayer Bill of Rights (TABOR) must give way to the education clause so that taxes could be raised and revenues increased to meet the needs of the education clause without a vote of the people.

A ruling by the Colorado Supreme Court asserting primacy of the education clause over TABOR and imposing higher taxes or spending could – as noted by both the attorney general’s office and Governor Hickenlooper – plunge the state into a constitutional crisis:

“Let’s say that the Supreme Court agrees with the district court – if that’s the case, then we’ve got the Constitution versus the Supreme Court.”

Listen to audio of Governor Hickenlooper’s statement on the Lobato appeal

Bottom Line:

This educational-funding lawsuit (seeking to force even higher state educational spending by court order) represents yet another abuse of the courts for the pursuit of political ends – unfortunately aided and abetted by an all-too-complicit (and highly political) majority on the Colorado Supreme Court, which previously (October 2009) overturned two lower courts which had (appropriately) dismissed the case (Lobato v. Colorado) as non-justiciable (i.e., a policy issue not to be decided by the courts).

Interestingly, two of the ‘unjust justices’ constituting the majority opinion in October 2009 (Mullarkey and Martinez) are no longer on the state’s highest court, while the 3 opponents of the original ruling remain.  Of the two replacements, one (Marquez) has (appropriately) recused herself from the case, as she had taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright.  Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.

If the courts are able to decide “the future of public education” by judicial fiat, Colorado citizens will have lost all control and accountability over our schools.

The issue of educational funding is NOT one for the courts, but rather for the legislature and/or local school boards. The Lobato lawsuit is a fiscal, legal, and political disaster in the making.

Read more about the Lobato school funding case in these articles:

• “Double talk on Lobato case before the Colorado Supreme Court” (Denver Post commentary, 13 March 2013)
• “Lawyers make last Lobato case pitches” (EdNews Colorado, 7 March 2013)
• “Supreme Court to consider Lobato case“ (Alamosa News, 6 March 2013)
• “Judicial Overreach” (Pueblo Chieftain editorial, 14 December 2011)
• “Judge Sets Constitution Aside in School Finance Ruling” (Audio, Education Policy Center, 12 December 2011)
• “Victory for Lobato Plaintiffs” (Education News Colorado, 9 December 2011)
• “Lobato case primer” (Education News Colorado, 11 August 2011)
• “Lobato lawsuit unfounded” (Denver Post, 11 August 2011)
• “In Lobato, might high court issue a ruling it can’t enforce?” (Colorado News Agency, 11 August 2011)
• “Lobato education-funding budget-buster aided & abetted by Colorado Supreme Court” (8 August 2011)

The Attorney General’s office has also compiled a list of key pleadings and court decisions in the Lobato case.

Cases such as Lobato – particularly Rappaport’s biased ruling – highlight the importance of fair and impartial courts and of judges who exercise proper restraint (in accordance with the rule of law) in considering – let alone deciding – issues of policy more appropriate for the elected, representative branches of government.  Our courts have an important – even vital – role to play in our society and system of government.  This is not it.