The state defendants in the Lobato v. State case “ignore the evidence and engage in speculation,” lawyers for the plaintiffs argued in a brief filed Wednesday with the Colorado Supreme Court.

Lobato v. State illustrationThe 80-page document is the plaintiffs’ formal reply to the attorney general’s appeal brief, submitted to the court on July 18. The state is appealing the December 2011 Denver District Court ruling that Colorado’s school finance system violates state constitutional guarantees of a “thorough and uniform” K-12 education system and also violates the constitution’s requirement for local control of instruction.

The Colorado Supreme Court’s ultimate decision in Lobato could have sweeping but hard-to-foresee effects on school districts, classrooms, the state budget and the taxes that Colorado citizens and businesses pay. A ruling for the plaintiffs could be costly, and a decision for the state could mean a lean future for Colorado schools.

Central to the state’s defense are the arguments that upholding the district court decision would be an unconstitutional judicial intrusion on the executive branch and the legislature, and that education spending must be balanced with other state budgetary needs.

The plaintiffs’ brief takes on both of those arguments.

It asserts that the first argument was settled by the Colorado Supreme Court’s 2009 ruling that the Lobato case could go to trial and that the courts had jurisdiction over the constitutional issues. The high court set a standard that the plaintiffs had to prove at trial that the school finance system isn’t “rationally related” to the state constitution’s education clause.

The state defendants “ask this Court to permit a dissatisfied litigant to keep re-litigating settled issues until it finds a receptive judge or justice. The Court should reject Defendants’ disregard for the Court’s decisions,” the plaintiffs’ brief argues.

Referring to Denver District Judge Sheila Rappaport’s 2011 decision, the brief reads, “The court did not dictate the new funding system’s structure or dollar amount, recognizing that ‘these are appropriately legislative and executive functions.’ … The trial in this case looked like any other trial on complex constitutional questions. The court heard competing evidence from lay and expert witnesses, found facts based on the persuasiveness of the evidence and the witnesses’ credibility, and applied the law to the facts. The court did not make education policy. Nor need this Court stray into the policy realm.”

On the issue of competing state needs, the plaintiffs’ brief reads, “Any need to fund non-school services cannot justify the arbitrary underfunding of education. The Lobato test [in the high court’s 2009 ruling] protects the affirmative rights stated in the Education Clause and respects the separation of powers doctrine. The trial court did not clearly err in finding that the legislature made no effort to determine the resources needed to provide, or to fund, a thorough and uniform system of schools. The record does not support defendants’ improper and premature speculation about the impact of the trial court’s decision on the State’s budget.”

Who’s who in the case

The plaintiffs include 67 individuals – parents and students – who live in six school districts, plus 21 school districts. They’re represented by Children’s Voices, a non-profit Boulder law firm, and by a variety of private lawyers. An additional 27 individuals living in four districts entered the case later as intervening plaintiffs and are represented by the Mexican American Legal Defense and Educational Fund.

The defendants are Gov. John Hickenlooper, the State Board of Education and education Commissioner Robert Hammond. They’re represented by Attorney General John Suthers and his staff.

Also filed Wednesday in support of the plaintiffs were a dozen “friend of the court” briefs representing 28 organizations or groups of people, including the Colorado Education Association, the Colorado Association of School Boards, the Colorado Association of School Executives, the ACLU of Colorado and the Bell Policy Center. A friend of the court is referred to as “amicus curiae” in legal language.

A smaller number of friend or amicus briefs were filed in July in support of the state’s case. Groups filing those briefs included the University of Colorado Board of Regents, three former governors, a coalition of business groups and two health care groups. The Colorado League of Charter Schools and the National Alliance for Public Charter Schools also filed what they called an “informational” brief in July.

The state’s argument

The primary assertion made in the state’s 64-page July brief is that the district court decision should be overturned because it ignores the state constitution and gives legislative and executive powers to the judiciary.

The state’s brief, along with most of the amicus briefs, also made the point that the high court needs to consider all state budgetary needs, not just whether K-12 funding is constitutional, in making its eventual decision.

The district court considered only the issue of whether the K-12 funding system meets constitutional requirements.

“Nothing in the Education Clause [of the state constitution] suggests the duty to provide a free public education overrides either legislative discretion or the competing demands for limited state revenue,” the state’s brief argued.

What’s next

The state has until Oct. 18 to file a reply to the plaintiffs’ brief, although it can request an extension. After that, the court will decide on the scheduling of oral arguments. Because the court has only a limited number of days each month for such arguments, it’s possible those won’t take place until next year.

The original Lobato lawsuit, filed in 2005, was rejected by two lower courts, but the state supreme court voted 4-3 in 2009 that it could go to trial.

Two of the four justices who voted to revive the case, then-Chief Justice Mary Mullarky and Justice Alex Martinez, have since left the court. Their replacements are Justice Brian Boatwright, a former district judge in Jefferson County, and Justice Monica Márquez, a former assistant attorney general. Márquez worked on previous stages of the Lobato case while serving in the attorney general’s office.

It’s up to an individual justice to decide whether to recuse oneself from a case.

A 3-3 supreme court tie on the Lobato appeal would have the effect of upholding the district court ruling.

Whatever the court’s ultimate decision, the question of school finance will end up in the legislature. The district court decision basically ordered the legislature to come up with a new system.

Even through the district court decision came down before the 2012 legislature convened, lawmakers pretty much ignored the issue this year pending appeal. The advocacy group Great Education Colorado is running an organized campaign to pressure lawmakers to take the issue up in 2013, and Sen. Mike Johnston, D-Denver, is working on possible school finance legislation for next year.