AG’s Lobato Appeal Pits Positive Rights Against Negative Rights

( – promoted by Colorado Pols)

I recently opined that Judge Rappaport’s Lobato ruling was a yawner. I still think the long run outcome and analysis will demonstrate that it is a yawner, especially given the storied history of education finance litigation nationally. Nevertheless, elements of this litigation hit upon an utterly fascinating question of law, especially after Attorney General John Suthers’ appeal. In particular, how do positive rights rank against negative rights? And, does there exist a hierarchy among Colorado’s constitutional guarantees?

AG Suthers’ appeal to the Colorado Supreme Court specifically targets Judge Rappaport’s decision to exclude evidence of “the General Assembly’s non-educational constitutional mandates and appropriations, as well as TABOR’s revenue restrictions.” His appeal questions Judge Rappaport’s order to exclude this evidence because of her determination that “while fiscal pressure [i.e., TABOR, etc.] may explain why students’ rights have been violated, it has no bearing on the issue whether  students’ rights have been violated.”

With his appeal, the Attorney General asks the Supreme Court to pit a positive right against a negative right: a state constitutional guarantee to a “thorough and uniform” system of public schools (positive right) versus TABOR, i.e., the right against excessive state taxation (negative right). Here, it is worth noting that the positive right in question accrues generally to society, while the negative right protects individuals against taxation above a specified limit. (Note: I focus here on TABOR as opposed to the other “non-educational constitutional mandates” because in the absence of TABOR many of these mandates would become moot.)

So, what right trumps in this instance? Will the Supreme Court consider “why” and not just “whether” students’ rights have been violated? If so, what hierarchy of rights will it choose?

I would argue that because of public education’s broad societal benefits that accrue to all Coloradans young and old, taxpaying and non-taxpaying alike, a legal determination should imbue this powerfully positive right with greater heft than the right to save a few dollars or cents on a tax bill.

8 Community Comments, Facebook Comments

  1. Littletonian says:

    Let’s say that the State wins its appeal but the Court bases its opinion primarily on TABOR. If TABOR is rolled back in the future, what is the likelihood that some future case would be decided in favor of Lobato’s side?

    I guess I’m asking two things: what’s the likelihood that the Court would hear this type of case again, and would the rollback of the Lobato decision be pretty easy if the Constitution has been changed by that point?

    Also, why has the state’s education funding not been reallocated to conform with Judge Rappaport’s decision in the interim between her ruling and the appeal?

    • The legislative session has been seated for how many days now?  A bill with a budgetary impact has to go through a number of hoops, and I’m sure the legislature, given the judge’s deadline of the end of the session, does not want to prematurely reallocate almost all of the general fund to education in order to comply with her order.

      Aside from that, I believe the judge stayed any further enforcement until that deadline.

    • eestidaisy says:

      The General Assembly is not working on a new school finance act to conform to the Lobato ruling because Judge Rappaport’s ruling remains stayed (or paused) while it is on appeal.

  2. If this is truly the AG’s whole reasoning in the appeal, then I think the state is likely to be on the losing end – or at least a not winning end – of the appeal.

    The reason is simple: TABOR has an “out” – the legislature can refer a tax increase measure and/or an education funding reform measure to the people and resolve the suit via action from the people.  The Supreme Court therefore may not even see an absolute conflict – it could theoretically propose delaying the judgement for a year pending the results of the referendum (or, barring the ability of the legislature to get a referendum on the ballot, a similar citizen initiative).

    Similarly, under this argument, the Court could rule that no other General Fund programs are constitutionally required, and therefore the state must do what it can to address the inequity using current funds.  (This would, of course, cut out any remaining tax credits, along with a lot of transportation funding, all higher ed funding, participation in a number of Federal programs, etc. – in short, it would be a disaster, but it would be more constitutionally correct than the current situation…)

    On reading the notice of appeal you link to, I’m not sure that this will be the main basis of the appeal – it appears the notice pretty much questions the entirety of the district court’s proceeding, which isn’t entirely unusual.  It is a bit unusual for an appeal to question facts as determined by the district court, which the notice of appeal does in fact state as a basis for the appeal; to me, this argues that the notice is more boiler-plate than an indication of the true direction of the appeal.  For that I think we’ll have to wait for an actual appeal brief.

  3. spaceman65 says:

    What is put in a notice of appeal is an advisory listing of issues, nonbinding on the party filing it. What issues will be addressed in the appeal will depend on what the parties raise in their briefs, which are a long way from being filed.

  4. MADCO says:

    don’t play one on tv.

    TABOR is a problem, but not the legal question.

    Define “thorough and uniform.”  That’s the legal question.

    I’ve wondered if the court can order a Constitutional convention in order to reconcile conflicting language.  Or for any other reason.


    TABOR is a problem and those who claim we should scrap the limits but keep the requirement for tax increases to voter approved are fools and don’t get it.

    • Probably not on ordering the Constitutional Convention.  There are well defined mechanisms for calling one, and the court isn’t one of them.

      It is hard for me to see the Supreme Court validating the current system as both thorough and uniform; at the very least it would seem to fail at the latter, and the Supreme Court will have some (read: a lot of) deference to the District Court’s findings of fact in this matter – it’s a hard row to hoe to overturn findings of fact.

      IMHO, the most likely line of attack is this: the notice of appeal notes that the District Court denied motions to further define a number of Constitutional issues, including definitions of “thorough and uniform” and interactions with other sections of the Constitution.  These matters are the types of things that Supreme Courts get to deal with, and they’re the types of things that are most likely to succeed on a challenge in appeal.  If the Supreme Court is to overturn this decision, it will likely do so on the grounds that the District Court was unwilling to consider these Constitutional questions, not based on findings of fact.

  5. BlueCat says:

    Thanks to eestidaisy et al.  I feel a little less hopelessly ignorant already.

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