Attorney General John Suthers Wednesday speculated that plaintiffs in the Lobato v. State school funding case “might invite the court to invalidate TABOR and Gallagher.”

Lobato v. State illustrationHis comments came during a hearing with the Joint Budget Committee, which had asked him to discuss Lobato, the appeals process and its potential time frame.

Suthers was referring to the Taxpayer’s Bill of Rights, which sets limits on state and local government revenues, and the Gallagher Amendment, which governs property taxes.

His comments were preceded by similar remarks from Assistant Attorney General Jonathan Fero, a member of the state’s courtroom team during the five-week Lobato trial in Denver District Court last summer.

“It’s unclear, but we believe that the plaintiffs … were making an attack on the TABOR amendment itself” in the implications of their arguments, Fero told the committee. The state does “believe that the constitution, including TABOR, really is under attack in this case.”

(Education News Colorado asked Kathleen Gebhardt, lead plaintiffs’ lawyer, for a response. She said, “We’re the ones trying to uphold the constitution. There was a clear finding that the state is in violation of the constitution.”)

Before the trial started, District Judge Sheila Rappaport ruled that TABOR, Gallagher and the issue of other state spending needs wouldn’t be considered as part of the case.

That’s a sticking point for many legislators, who don’t see how the question of school funding can be considered outside the context of other state needs. “That doesn’t make any sense,” said Rep. Cheri Gerou, R-Evergreen and chair of the JBC.

Attorney General John Suthers
Attorney General John Suthers / File photo
Suthers said, “There will be various aspects of the appeal.” Gov. John Hickenlooper, the State Board of Education and education Commissioner Robert Hammond all have officially decided to appeal. The deadline for filing a formal notice is next Monday.

According to plaintiffs’ calculations of supreme court rules, the state has until April 23 to provide the trial court record and faces a June 4 deadline to file an opening brief. Plaintiffs will have to respond by July 9, and the state has a July 30 deadline to reply to that. The plaintiffs’ lawyers say they’re “hopeful” the high court will rule by the end of 2012.

Regarding appeal arguments, Suthers said, “We’ll ask the court to reconsider” its 2010 ruling that the courts had jurisdiction over school finance, and “We will ask the court to overturn the trial court’s ruling on the basis of pretrial rulings” – the exclusion of TABOR and Gallagher from consideration during trial. “We are going to suggest … the question of what’s thorough and uniform has to be looked at in the context of subsequent constitutional amendments.”

In addition to TABOR and Gallagher, the state believes Amendment 23, which sets a formula for school funding, is relevant.

Rappaport’s ruling was based on the so-called education clause of the state constitution, which calls for “thorough and uniform” free public schools. That clause was part of the original 1876 constitution. The judge ruled that the state school funding system has no rational relation to the thorough and uniform requirement and ordered the legislature to come up with a new system.

Suthers said, “We would anticipate arguments something in the fall. … I would anticipate a supreme court opinion about this time next year.”

The attorney general used the words “constitutional crisis” to describe what happens if the high court rules for the plaintiffs.

Gerou quipped, “I’m glad I’m not you.”

Suthers didn’t respond, but Sen. Pat Steadman, D-Denver, said, “I thought General Suthers was going to say he was glad he wasn’t us.”

TABOR does face a direct legal challenge in the form of a separate federal court lawsuit filed by 34 plaintiffs, including some current and former legislators. That suit claims TABOR violates various parts of the U.S. Constitution and the enabling act that admitted Colorado as a state.

The state has filed a motion to dismiss the case, and that motion will be argued in U.S. District Court next month.