GUEST COLUMN: Judge Labato's Anti-Constitutional Opinion Is Politics, Not Law

By Dunn, Joshua | The Gazette (Colorado Springs, CO), January 18, 2012 | Go to article overview

GUEST COLUMN: Judge Labato's Anti-Constitutional Opinion Is Politics, Not Law


Dunn, Joshua, The Gazette (Colorado Springs, CO)


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. …

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