The rule of law for thee but not for me

Associate professor in political science, University of Colorado-Colorado Springs
Joshua Dunn

Guest blogger Joshua Dunn is an associate professor of political science at the University of Colorado-Colorado Springs. In this post, originally published in the Colorado Springs Gazette, he dissects a judge's flawed ruling in a recent Colorado school funding case.

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 through litigation. Sadly, both of
Barack Obama’s concerns were exemplified in a Colorado state court decision last December.

In the long-running Lobato
v. Colorado school finance case
, Denver District Court Judge Sheila
Rappaport declared that Colorado
is underfunding education by more than $2 billion per year. She said that the
seventeen-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 school funding 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 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.

In other words, the judge believes she is free to ignore
those inconvenient amendments.

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.

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