Lobato v. Colorado, 218 P.3d 358 (Colo. 2009)

Question: Does the Colorado Constitution allow judges to make the financing decisions for Colorado schools?

What the Constitution Says: The Colorado Constitution states that “[t]he general assembly shall . . . provide for . . . a thorough and uniform system of free public schools throughout the state”.  Colo. Const. art IX, § 2.  Based on this language and citing the legislature’s authority over appropriations, the court of appeals said that “the Colorado Constitution commits the issue of educational adequacy and financing solely to the legislature” (p. 367).

The Mullarkey Justices Disagree with the Court of Appeals and with the Constitution: Chief Justice Mary Mullarkey, Justice Michael Bender, and Justice Alex Martinez say that from now on, the judiciary will take on the prerogative of determining on a rational basis how best to fund Colorado’s public schools (pp. 374-75).

Three Justices Protest: Three Justices protested the Mullarkey Justices usurpation of the legislature’s policymaking and decisionmaking authority.  The dissenting Justices were highly critical of the Mullarkey Justices deciding political questions and transgressions of the Constitution’s separation of powers (pp. 377-78).

What Does the Mullarkey-Bender-Martinez Decision Mean for You? The Mullarkey Justices can be expected to make policy decisions and political decisions concerning school financing despite the Constitution.  The Mullarkey Justices are marginalizing the Colorado general assembly, in this case substituting rule by the judge for the Colorado Constitution.

Additional Information and References

Read the entire published opinion:  Lobato v. State of Colorado


Rosen: Clearing the liberal bench  ("“The liberal majority on the Colorado Supreme Court has taken judicial chutzpah to a new level.”)

Supreme Court's power grab might backfire  ("In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government - and the voters - to a perfunctory role.")

Carroll: School funding by fiat  ("A powerful coalition that includes a who's who of the education establishment is pushing to undermine democracy and the separation of powers in Colorado. And thanks to a decision last week by the state Supreme Court, it just might succeed.")
(See also: “School funding by fiat?” Denver Post’s Carroll calls it right)

Courts shouldn't mess with school funding ("Colorado's top judges have opened the door to re-crafting our school finance system from the bench when they should have avoided the possibility altogether.  On Oct. 19, a 4-3 majority of the Colorado Supreme Court overturned two lower court decisions that said school finance policies were the realm of the elected legislature rather than unelected judges.")

Taking on the Colorado Supreme Court ("A sense that the Colorado Supreme Court is growing out of control continues to pick up momentum after the October 19 Lobato v State ruling (PDF), in which the 4-3 liberal majority arrogated to itself the power to determine school funding policy.")