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GUEST COLUMN: Judge Labato's anti-constitutional opinion is politics, not law

JOSHUA DUNN Updated: January 18, 2012 at 12:00 am

In a 2001 interview, a little known state senator and law school professor from Illinois cautioned that courts are “poorly equipped” for making public policy. Pointing to problems with the legitimacy and ability of courts particularly in the field of education, he advised seeking change through politics rather than litigation. Sadly, both concerns of Barack Obama were exemplified in a Colorado state court decision last December.

In the long-running Lobato school finance case, Denver District Court Judge Sheila Rappaport declared that Colorado is underfunding education by more than $2 billion per year. She says the 17-year-old Public School Finance Act violates the education clause of the state Constitution, which says that the state legislature shall provide a “thorough and uniform” system of public schools. She instructed the state legislature to design a schoolfunding system that complies with her order. Although she did not specify a precise sum, her order indicated that billions of dollars of additional spending would be required every year.

Unfortunately for Rappaport, the Colorado Constitution consists of more than just the education clause. The Taxpayer’s Bill of Rights requires voter approval for tax increase. Voters must also approve spending increases which exceed the rate of inflation plus population growth. Another provision in the Constitution, the Gallagher Amendment, limits residential property taxes.

As with any legal document, any interpretation of one part (such as the education clause) has to be consistent with other parts (such as the constitutional tax limitations).

Shockingly, Judge Rappaport claimed that “the interpretation of the Education Clause does not need to be harmonized with either TABOR or the Gallagher Amendment.” In other words, the judge believes she is free to ignore those inconvenient amendments.

To illustrate what a preposterous, and dangerous, position that is, imagine the U.S. Supreme Court saying that the President’s commander-in-chief powers did not have to be harmonized with the First Amendment’s guarantee of freedom of the press. Outrage would be the appropriate response.

Both TABOR and Gallagher they were added to the constitution by the people of Colorado after the education clause. The people of Colorado thus have decided that the education clause must conform to the restrictions laid out in those amendments. The normal rule of interpretation is that if two provisions conflict, the latter-enacted one controls.

Simply put, the education clause cannot require what TABOR and Gallagher forbid. If the people of Colorado decide they do not like the limits, they are free to amend the constitution. But by saying that she can ignore the provisions by not “harmonizing” them with the education clause, Judge Rappaport has shown contempt both for the constitution and for the people of Colorado. Since she chose to ignore the constitution, this is not a disagreement over interpretation. Instead, she blatantly breached her constitutional duty. If the governor or any other constitutional officers sworn to uphold the state constitution had so scornfully and flagrantly violated their oath, the legislature could quite properly consider impeachment.

Her contempt, however, also points to the practical question of which institution should bear responsibility for making government funding decisions. Judge Rappaport unwittingly showed why God gave us legislatures.

In her Lobato opinion she said she could not consider the fact that “public education is not the only required or important state service.” In short, she was only going to consider education in isolation.

That is a luxury the state legislature does not have. In a world of limited resources, legislators must decide whether a dollar that could be spent on K-12 education would be better spent on roads, or Medicaid, or higher education, or prisons. Sane people do this everyday in their own lives when they consider whether their limited resources should be spent on their car, or house, or food. Ignoring this economic reality is the path to both personal and public insolvency.

Without voter approval for a tax increase, the only way for the legislature to comply with Judge Rappaport’s edict would be to eliminate almost every discretionary item in the state budget: to literally close every state prison, terminate all enforcement of environmental laws and all other laws, end all maintenance and construction of roads, and get rid of almost all the rest of the state government.

Alternatively, Colorado could withdraw from the joint state-federal Medicaid program, and leave poor people in Colorado with zero medical care.

None of these alternatives is a good idea, and none is really required by the Constitution.

Sheila Rappaport’s anti-constitutional decision is politics, not law.

The state legislature has every right to treat her illegal edict with the same contempt with which she treats the Constitution.


Dr. Joshua Dunn is an associate professor in political science at the University of Colorado-Colorado Springs. He originally wrote this article for the Independence Institute, a think tank in Denver.

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