Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday

The Colorado Supreme Court will issue a ruling in the resurrected ‘Lobato v. Colorado‘ school funding lawsuit (previously termed the Super Bowl of school funding litigation) this Tuesday, 28 May 2013 (the court heard oral arguments in the case in early March this year).

At issue: the constitutionality of Colorado’s system of statewide school funding.
At stake: some $4B 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.

Colorado Supreme Court Justices, from left, Nathan Coats, Gregory Hobbs, Michael Bender, Nancy Rice, Allison Eid and Brian Boatright hear school-funding arguments in the Lobato vs. Colorado case filed in 2005. Attorneys from both sides were subjected to pointed questioning from the bench. (RJ Sangosti, The Denver Post)

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).

Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.

However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement).  Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having 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.

 At Stake?

As previously mentioned, not only are billions of dollars in additional school funding (estimated by plaintiffs at $4B, annually) at stake – which alone could have “devastating consequences” for the state, according to Governor Hickenlooper – it could precipitate a constitutional crisis.  A court mandate to raise taxes or require more spending would intrude upon the legislature’s authority to set education policy and violate the constitutionally-defined separation of powers between the branches of state government (an issue raised in the dissenting opinion in the 2009 ruling, as Clear The Bench Colorado noted at the time:

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

Clear The Bench Colorado‘s prediction on Tuesday’s pending ruling:

Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections.  Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.

Our bet: 4-2 to overturn, upholding the Constitution. 

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 (correctly) dismissed the case (Lobato v. Colorado) as non-justiciable (i.e., a policy issue not to be decided by the courts).

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 has been a fiscal, legal, and political disaster for almost a decade.

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

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.

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