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.
Pundits and advocates alike are abuzz over Judge Sheila Rappaport’s ruling in Lobato v. Colorado. Judge Rappaport, a Republican appointee (Governor Bill Owens), ruled that the state has failed in its constitutional duty to provide a “thorough and uniform” system of public education across Colorado. Any exasperation, perspiration or celebration over the Lobato ruling is both premature and ill-placed. Here are five reasons the Lobato ruling will prove to be an historical afterthought:
First, this is only just the beginning. The Lobato ruling is just that: a trial court determination of facts as applied to existing law. (Note: the state performed a dismal job of presenting evidence during the trial. Oddly, the state decided not to hire Sutherland Asbill & Brennan, a Georgia law firm with a national reputation for successfully defending states in school finance litigation, and instead called its own fringe witnesses.) Because Judge Rappaport’s ruling remains subject to appellate review, the Colorado Supreme Court may very well reject her application of the law and put the kibosh on any further proceedings in the Lobato litigation. End of story.
Alternatively, if the Colorado Supreme Court upholds the ruling, the state legislature must attempt to remedy, with little guidance from the judiciary (see the fourth reason below), the constitutional defects in the current system. Experiences from across the country demonstrate that plaintiffs typically challenge legislatures’ first attempts at these remedies, thus beginning the legal wrangling all over again. New Jersey’s school finance litigation has gone on for over 25 years, undergoing a constant volley (at least ten times) between the legislature and the state’s supreme court. New Hampshire and Texas offer similar cautionary tales. This volleying is certainly nothing to get to excited about.
Second, a fully implemented remedy is impracticable. Assuming the Colorado Supreme Court does uphold the Lobato ruling, the $2 to $4 billion price tag is so costly as to render it economically and politically impracticable. Again, experiences from around the nation demonstrate that some recalcitrant state legislatures have simply refused to comply with these types of far-reaching orders, leaving the appellate courts powerless to enforce compliance, even with the aid of the executive branch. Ohio, for instance, has operated on an unconstitutional school finance system for a decade. What’s more, governments can have a difficult time protecting and enforcing positive rights (e.g., a right to an adequate education). President Eisenhower needed to deploy the National Guard to enforce court-ordered desegregation, for instance. It would behoove Colorado stakeholders to avoid a separation of powers standoff.
Third, a broader injustice is at play. Inequitable and inadequate school funding remain systemically rooted in deeper economic, social and political ills not addressed in Judge Rappaport’s Lobato ruling. Minus any major corrections to these fundamental ills, any state response to the Lobato ruling will prove unsustainable and will fail to correct the harms cited in the ruling. A separate school finance case that addresses the same level of inadequate funding may very well crop up five, ten or twenty years from now.
Fourth, Lobato is a dialogical ruling (i.e., it rules on the factual and legal merits of the case yet abstains from articulating a clear remedy or way forward). Judge Rappaport’s ruling only gives judicial cognition to the inadequate funding of public schools, something already recognized by Coloradans with children in the public school system. Furthermore, and as mentioned above, the ruling only gives cognition to a symptom of an underlying illness: that of greater social and economic inequality throughout the state and the reticence of the body political to invest in the state’s economic, social and civic infrastructure.
Fifth, Lobato ignores intra-district inequalities. The Lobato plaintiffs relied on an outdated legal strategy: challenging the “adequacy” of state funding for public schools. Albeit a successful strategy, adequacy challenges ignore inequities that occur within school districts (e.g., Colorado’s best teachers often end up teaching Colorado’s most capable students). Judge Rappaport rightfully cites a need for increased funding for public schools but remains silent on the fact that school districts often deploy resources where they are least needed. The way forward will come through a more logical deployment of enhanced school resources.
Pundits and advocates need to take a deep breath before reacting with such gusto to the Lobato ruling. Too many variables and defects exist in the ruling in its current form to expect systemic change. The ruling does provide an opportunity, however, for the governor’s office, whether the Colorado Supreme Court upholds Judge Rappaport’s ruling or not, to take the lead and initiate a statewide campaign to coalesce public support for systemic changes to how and how much Colorado funds public education. The legislature then needs to listen and act on this public sentiment. As the U.S. Supreme Court opined almost forty years ago regarding school finance litigation:
[T]he ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.
10. The End of the Dick Wadhams Era. On New Year’s Eve one year ago, former Colorado GOP chairman Dick Wadhams was likely to run for his third term. But by early February, Wadhams had pulled himself out of the running, telling FOX 31′s Eli Stokols that he “got tired of the people who see a conspiracy behind everything we do.” In the aftermath of the GOP’s disastrous 2010 gubernatorial primary, Wadhams was singled out for blame by many fellow Republicans for failing to properly “vet” the GOP’s eventual nominee Dan Maes. Others broke with Wadhams for publicly attacking Maes in his role as the state party chairman after Maes won the nomination, and all but endorsing the third-party entry of Tom Tancredo into the race.
The 2010 gubernatorial disaster was the last in a long history of meddling in Republican primaries by Dick Wadhams. In 2008, Wadhams was accused of muscling any challenge to longtime friend Bob Schaffer out of the GOP U.S. Senate primary, including both minor and (at least at the time) perfectly viable candidates. In the 2010 Senate primary, Wadhams is widely believed to have colluded with national Republicans to clear the field for former Lt. Gov. Jane Norton–another total failure that severely harmed Wadhams’ standing with the conservative base.
In the end, Wadhams was done in by his own arrogance. The sort of pre-primary wrangling that made Wadhams infamous is not new in politics, but coming during the “Tea Party” surge on the right and against the wishes of an increasingly restive GOP base, Wadhams discovered a hard limit to the power of the smoke-filled backroom.
9. Medical Marijuana, The Feds, and Jared Polis. Colorado’s burgeoning medical marijuana industry, approved by the state’s voters under Amendment 20 in 2000 and greatly expanded by new rules allowing for commercial medical marijuana dispensaries in recent years, faces a growing challenge from federal law enforcement. Marijuana remains a “Schedule I” controlled substance under federal law, meaning no legitimate medical use of it is recognized. The federal government is in the process of cracking down hard on the state of California’s less-regulated medical marijuana indistry, and in Colorado, federal uncertainty has resulted in marijuana dispensaries legally operating under state law being unable to access simple business banking services.
In response, Rep. Jared Polis of Boulder has emerged as the state’s–and nation’s–leading congressional defender of medical marijuana and pot legalization in general. Polis has sponsored legislation to end the universal federal prohibition of marijuana and leave its regulation to the states. In questioning of Attorney General Eric Holder, Polis has tried to differentiate bewtween California’s medical marijuana industry and Colorado’s much more tightly-regulated model.
Polls are showing that the issue of marijuana prohibition is quickly shifting in terms of public support. The federal government is increasingly behind the curve as states pass greater and greater liberalizations of marijuana laws. It seems to us that Rep. Polis is very much at the vanguard of a winning long-term issue–and for a young guy in politics, that’s a great place to stand.
8. The Rise and Fall of “Occupy Denver.” Late this summer, massive protests inspired by Canadian activist magazine AdBusters gripped cities across the United States. Called the “Occupy Wall Street” movement, these protests sought to call attention to widening income and economic opportunity inequality in America and around the world. Coming on the heels of the “Arab Spring” protests that ended despotic regimes in Tunisia, Egypt, and eventually Libya, there were high hopes that these protests would result in meaningful reforms in American economic policy.
And then it started to get cold.
Here in Colorado, a robust “Occupy Denver” encampment developed near the state capitol in late September, and was initially welcomed–even some lawmakers like Rep. Wes McKinley pitched a tent to “be close” to the protesters. Unfortunately, as this encampment grew, provisions for basic functions like sanitation and rudimentary safety policies (no tapping light posts for power, no blocking traffic) never materialized. This basic lack of organization, as time went on, began to squelch the larger message of the protests–and gave authorities all the pretext they needed to start breaking up “Occupy Denver.”
The fact is, “Occupy Denver” never had a viable plan for surviving the winter season. During the season’s first major snowstorm, it become obvious that many of the protesters were not concerned with their own safety or that of others. It became a situation where underequipped protesters were standing out in the cold without adequate protection–sorry, but a cheap dome tent is not enough to protect you in those conditions–and blaming the police for their resultant hypothermia. The fact is, if the tents had been permitted to remain, the police would have pulled frozen “Occupiers” out of them. All of which was plain to the average observer, the real “99%” that Occupy Denver was supposed to be speaking for.
The lack of organization and rational decisionmaking on the part of the “Occupiers” has today stripped them of much of their public support. The “Occupy Denver” contingent still present near the capitol has dwindled as winter has set in, and now seems to be composed of a core group of already-homeless people who really can’t be reasoned with. Their larger message points about income inequality and economic reform have been hopelessly sidelined by increasingly strained allegations of police brutality.
Bottom line: anyone who hopes to see something more productive in the spring from the “Occupy” movement had better be prepared to join it and change its course. There is a chance that “Occupy” could still have a political impact in 2012 if these public safety and organizational embarrassments that alienate “Occupy” from the real “99%” can be overcome–but not by the usual-suspect marginal types who have caused them.
7. TABOR Author Doug Bruce Convicted of Tax Evasion. Republicans have a love-hate relationship with the mastermind of the 1992 Taxpayer’s Bill of Rights (TABOR), anti-tax activist Doug Bruce. On the one hand, they, along with Bruce, don’t like taxes.
On the other, Doug Bruce takes his dislike for taxation to an extreme that Republicans should find most unsettling.
Bruce’s conviction for felony tax evasion and attempting to influence a public servant, related to a false charity he established to move money around between his personal wealth, business dealings, and his various local and statewide anti-tax initiatives, reveal the mind of the man who authored the labyrinthine Taxpayer’s Bill of Rights. TABOR’s restrictions on the timing and operation of elections for tax increases go well beyond the talking point that TABOR simply requires such elections. The complicated and sweeping changes to fiscal policy made by TABOR cannot even be undone in a single initiative due to the subsequent “single subject rule” passed in response to its complexities.
In short, TABOR’s simplified explanation that it requires voter approval of tax increases conceals all of the sneaky things it does to make such an election very hard to successfully carry out. Fixating on that one popular provision also conceals the fact that TABOR stripped the state of the most straightforward method of socking away revenue when times were good for when they weren’t–something voters say they support as a measure of fiscal responsibility.
Now we know that TABOR’s author Doug Bruce is just a sneaky guy in general. And the same mind that produced TABOR has now produced a felony case of tax evasion. For Colorado Republicans, for whom TABOR is an inviolable article of faith however much they don’t like the author, this situation will either result in either introspection, or denial meant to be loud enough to drown out said introspection.
6. Hancock Beats “Class President” Romer, Survives Rocky Start. We’re going to upset some of you by positing that Mayor Michael Hancock was an absolutely awful candidate, perhaps one of the worst we’ve ever seen who actually managed to win their election. The fact that Hancock is now the Mayor of Denver is principally due to the fact that he was running against an even worse candidate in the person of former state Sen. Chris Romer, and that both Hancock and Romer were were able to outspend everybody else in the initial race.
Voters were surprisingly willing to put aside the fact that Hancock had repeatedly betrayed an anti-science (or at least scientifically ambivalent) bias when answering questions about creationism being taught in schools. In a city as educated and overwhelmingly Democratic as Denver, we do consider this to be fairly remarkable. Part of the reason Hancock drew a pass was the gleefully over-the-top way that Romer’s supporters tried to drive the issue home–facts of the matter notwithstanding, the Hancock campaign was able to convince the press that “negative campaigning” was the real story here, not the fact that Hancock had repeatedly expressed support for creationism in school curriculum. We wouldn’t have predicted that.
But there is perhaps no better example this past year in Colorado politics of a political self-inflicted wound than the reaction of the Hancock campaign to a story about Hancock’s name and phone number appearing in the records of the Denver Players prostitution ring, the same operation whose meticulous bookkeeping had already destroyed the career of a federal judge. Many details surrounding this “June Surprise” scandal remain mysterious–the original records were reportedly stolen from their owner at the height of the controversy in a case that remains unsolved. Hancock has consistently denied ever using the Denver Players prostitution service, and while he admits the phone number in the records is his, he claims it is not there legitimately.
All of which would have remained in the land of inside-baseball gossip until Hancock’s campaign broke agreements they had made with the press to disclose exonerating phone records, prompting the Denver Post and other major outlets to damagingly expose the allegations to the lay public. Whether a miscommunication, or an unexpected delay, or whatever, it was stunning to watch the press holding an uncooperative politician accountable–and probably a very good thing. Hancock ultimately did produce phone records that satisfied the press in terms of showing no contact with the Denver Players, which ended the standoff, but in the process he reminded everyone in public life of the power of a media doing its job.
5. Scott Gessler–The “Honey Badger” of Colorado Politics. We’ll be honest, folks: we didn’t think infamous GOP elections lawyer Scott Gessler was going to be elected in 2010. We’re pretty sure that Gessler didn’t expect to win, either. But when the GOP’s #1 defender of groups and persons accused of election law violations became the chief enforcer of election law, we knew it was going to be bad.
And it’s fair to say that Gessler has shattered our expectations.
Secretary of State Scott Gessler has set a new standard for openly, wantonly partisan manipulation of his office and duties. Gessler began his term by announcing a plan to continue working for his old law firm, a situation so potentially fraught with conflicts of interest it was downright laughable. Gessler has (unsuccessfully) sought sweeping new power to purge the voter rolls based on dubious, unquantified allegations of “illegal voters.” Gessler tried to stop counties from mailing ballots for this year’s elections to tens of thousands of registered voters flagged as “inactive,” losing in court in his injunction attempt with the judge rebuking him in strong language about protecting the right to vote.
Gessler has been so openly and boorishly partisan that it is making other Republicans routinely cringe. This was well-illustrated this past summer when Gessler’s office first slashed the fines owed by the Larimer County Republican Party, then hosted a fundraiser for the same Larimer County GOP to pay off the remaining fines. Gessler’s original plan to appear in a “dunk tank” to raise money for the Larimer County GOP was canceled after statewide ridicule, but the fundraiser itself still went ahead.
None of the criticism over these gaffes has slowed Gessler down a bit: after a judge struck down Gessler’s loosening of campaign finance reporting requirements, he simply tried again in new rules he is proposing–rules that allegedly exceed his rulemaking authority in all kinds of other ways, too. After Gessler’s unsuccessful manipulation of a legislative error to unlawfully strike a whole class of primary campaign finance reports, Gessler imposed a new rule that intentionally produces the worst possible consequence of that error out of pure spite.
There are those who tell us that Gessler in fact has no plans to run for re-election in 2014, and looks forward to returning to the much more profitable legal representation side of election law. In the meantime, Gessler’s first year in office portends three coming years of more or less open partisan warfare waged from the Colorado Secretary of State’s office. Gessler’s not going to be nice about it, and he’s probably not going to be all that sneaky about it either.
Because “Honey Badger doesn’t give a shit.”
4. Mixed Messages: The Lobato Case and Proposition 103. Earlier this month, Denver District Judge Sheila Rappaport handed down a 180+ page ruling in the case of Lobato vs. Colorado. The Lobato case’s plaintiffs, led by rural school districts in the San Luis Valley but eventually including many other districts and individuals, alleged that Colorado’s public education funding system is not rationally related to the increasing requirements imposed on the system–and that the state is unconstitutionally violated the Education Clause in the Colorado Constitution obligating a “thorough and uniform” public education system.
In 180+ absolutely damning pages of meticulously-compiled evidence, Judge Rappaport agreed with the plaintiffs. The combination of so many limits on the funding of public education with the increasing requirements that standardized testing and school accountability programs have placed on the system has, ruled the judge, resulted in an irrationally underprovisioned and broken system that is failing in its charge to thoroughly and uniformly educate Colorado’s children.
Obviously there is a wide range of debatable positions in the argument of what constitutes a “thorough” education. But there are structural minimums in place as a result of standards now imposed on public education. If Judge Rappaport’s decision is upheld by the state Supreme Court, we will have a situation where the legislature, and also the voters, will be called out by the judiciary to take major action–possibly to the tune of billions of dollars per year.
Anyway, somebody really needs to explain this situation to the voters of Colorado, who rejected this November in overwhelming numbers a modest, temporary return to 1999 sales and income tax rates to raise some $500 million per year for public education. The Proposition 103 campaign in hindsight really didn’t have a chance: it was not supported by the governor or key institutional players beyond traditional education advocates. The campaign was never funded to the extent required to overcome the natural propensity against tax increases by voters. To the extent that the public was aware of the debate, there was an intense campaign of out-and-out misinformation waged by opponents.
What we have today in Lobato vs. Colorado decision and the results of Proposition 103 is a microcosm of the fundamental cognitive breach that exists in American politics after years of “small government” drum beating. The problem for the right is that they have in large part succeeded in their goal of depriving the public sector, through legislative, initiative, and executive policy, of the resources it needs to function. And they’ve swayed the public with their repetitious axioms.
But that’s why our system of government has checks and balances.
3. Latinos, the RSCC and the Failed “Arizona Strategy.” The fastest-growing demographic in the United States is the Latino population. They are also the fastest-growing segment of the electorate. Throughout the West and the whole nation, Latinos are increasingly showing political strength, and are expected to become a decisive factor in coming election cycles.
Just as the Republican Party is doing their level best to permanently alienate them.
Led by the passage of the controversial anti-immigrant SB-1070 in Arizona, the “Tea Party”-influenced GOP is creating a long-term demographic disaster for itself as Karl Rove, former Colorado GOP chairman Bob Martinez, and many others have warned with increasing urgency. In Colorado this year, Republicans in the General Assembly repeatedly introduced legislation that attempted to mimic Arizona’s law in whole or in part. All of them were defeated, but be assured the Latino community took notice of what was happening and who was responsible.
In some ways, it seems as though the GOP can’t help itself on the issue of relations with Latino voters. Rep. Mike Coffman, a staunchly conservative congressman now running in a highly competitive district, still championed ill-advised legislation to relax federal requirements regarding the distribution of bilingual ballots–not targeting illegal immigrants but legal American citizens.
There remain some voices in the Colorado Republican Party who are opposed to the anti-immigrant posturing of many of their colleagues. Rep. Robert Ramirez, for example, told the New York Times that the GOP needs to become the “party of inclusion”–right after he voted against the ASSET bill to allow undocumented students in Colorado access to in-state tuition.
It’s still possible that reasonable voices in the GOP will prevail in the long run, especially if this continued anti-immigrant posturing begins to be felt negatively at the polls more than it helps shore up the conservative base. But in Colorado, even among those who claim they would like to see that, they did themselves no favors in 2011.
2. GOP Historically Bungles Reapportionment. The story of state legislative reapportionment in Colorado this year, which established General Assembly district boundaries for the coming decade, is one of partisan overreach, self-destructive belligerence, and bogus recriminations.
Nonetheless, both sides seem to be adapting to the new reality.
The state legislative reapportionment commission, composed of equal numbers of Democrats and Republicans with one tie-breaking unaffiliated voter, originally produced new House and Senate maps that were approved with bipartisan support. But some Republicans, led by state party chairman Ryan Call and House Speaker Frank McNulty, weren’t entirely happy with these bipartsan-approved maps, and led the effort to appeal them to the Colorado Supreme Court.
When the Supreme Court sided with Republicans and ordered the maps remanded with instructions to reduce the number of county splits between legislative districts, Republicans cheered. The commission went back to work, and the unaffiliated chairman Mario Carrera ultimately voted with Democrats in a 6-5 vote to approve their proposed maps. The Democratic maps, as ordered by the Supreme Court, reduced the number of county splits and were duly affirmed. But it’s critical to understand that it was Republicans who led the fight against the original maps, and it was this second round of belligerence and exposure to risk that proved to be their cardinal error.
Following the commission’s 6-5 vote to approve the Democratic maps, Republicans exploded in a fury of accusations that the process was rigged–that Republicans didn’t get as much time as Democrats, than chairman Carrera had somehow “misled” those who recommended his appointment by having made political donations as an unaffiliated voter. On examination of the procedural record, these claims didn’t hold up. Republicans were submitting late proposals just like Democrats, and the idea that an unaffiliated voter isn’t “allowed” to make political donations, which Carrera has to both parties, is frankly kind of ridiculous.
One effect the new maps do have, compared to the first approved maps, is a number of incumbents who were either drawn out of their old districts, or drawn into districts represented by other incumbents (or both). Since approval of the final maps, some Republicans, and at least one Democrat, have announced their intentions to step aside in 2012. In HD-19, a high-profile primary between two GOP incumbents is getting underway–even though one of them, Majority Leader Amy Stephens, had been guaranteed a primary regardless of the outcome of reapportionment. Claims that these changes were an intentional “misogynist” attack on conservative women have been debunked to the point of backfiring on the accusers. And Democrats insist these changes were necessary in order to comply with the court’s directions in remanding the original maps.
And the funny part is, as Republican commissioner Bob Loevy discovered when he actually started looking at these new maps, is that they really don’t give the kind of advantage to Democrats that Republican accusations about them presuppose. In fact, what you have in Colorado are far more truly competitive districts, districts that don’t lend themselves to political extremism on either side. Districts that a moderate reasonable Republican could win or a moderate reasonable Democrat. To the extent that Republicans may have fewer such moderate reasonable candidates in their farm league, well, that might be a short-term issue for them.
But objectively, most of the state’s voters fill find this a positive development.
1. Redistricting and Colorado’s New Congressional Landscape. In response to significant changes in the makeup and distribution of Colorado’s population in the last ten years, Democrats came into the congressional redistricting process thinking big. And through a combination of savvy politics, expert map-drawing strategy, and persistence, they got much of what they wanted.
Much like the legislative reapportionment process described above, Republicans were never really able to articulate a coherent strategy for congressional redistricting. Their arguments as the divided General Assembly’s redistricting committee futilely attempted to agree on a map essentially boiled down to status-quo preservation and accusations of bad faith on the part of Democrats.
Democrats responded by drawing better maps. Starting with maps that made the biggest changes to Colorado’s congressional districts in 30 years, Democrats answered criticisms and feedback by scaling back those proposals while preserving many of their overall goals. As a result, relatively incremental changes were made to CD-3 on the Western Slope. But CD-6, created as a safe Republican seat in 1980, was dramatically changed into a hotly competitive and diverse district centered on the city of Aurora. This change firmed up CD-4, held by freshman Rep. Cory Gardner, as a safer GOP seat at the direct expense of CD-6 incumbent Mike Coffman. CD-2, represented by the wealthy and liberal Jared Polis, becomes somewhat more competitive, and Ed Perlmutter’s CD-7 becomes more compactly centered on his home turf of suburban Jefferson County.
In all, the affirmed changes do result in an excellent chance for Democrats to recapture the majority of the state’s congressional delegation, today 4-3 GOP. Apart from the hardening of CD-4 for the GOP and the continued uncompetitive nature of El Paso County-centered CD-5, there’s really no place in the state where Democrats cannot strongly contend for these seats. But as with reapportionment, this should not breed complacency: they are competitive seats, not partisan freebies by any stretch.
As with reapportionment, the GOP’s engagement in the redistricting process was simply not constructive, and ended up distracting and self-injurious. Their proposals were unimaginative, and based on a rote defense of the status quo that judges rejected. Their public relations strategy of stoking public outrage over minute details in this inside-baseball process was a failure with both the media and the judiciary–for whom their pouting was never a factor anyway.
We won’t really know the full story of redistricting until after the 2012 elections, of course–you can make the argument that it won’t really be known until it’s time to do this again in 2021. Last time, Republicans turned the story of redistricting into a scandal by attempting an unconstitutional do-over in 2003 after electoral gains the previous year.
No such scandal this time. Assuming these maps play out as the sides expect them to, Republicans were simply beaten, fair and square, in the biggest game of the decade.
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An interesting question posed by the Colorado Springs Independent’sChet Hardin:
Since last week’s conviction on three felony counts, Douglas Bruce has gone radio silent.
In an e-mail, the typically vocal conservative advocate had only this to say of his tax evasion trial: “I am innocent. I will appeal. I will prevail.”
According to the office of Attorney General John Suthers, Bruce is facing up to 12 years in prison and $700,000 in fines when he is sentenced in February. And no matter what the sentence, the conviction will surely impact the way Bruce is viewed at large.
But will it do the same to his signature accomplishment, the Taxpayer’s Bill of Rights?
State Senate Majority Leader John Morse, a Colorado Springs Democrat and one of the plaintiffs in a lawsuit challenging TABOR’s constitutionality, sees the two as linked: “Douglas Bruce has never been about good government. He’s always been about paying the least amount of tax possible. And he resorted to unconstitutional means by passing TABOR, and now he’s resorted to criminal means.
“He is so anti-government,” Morse adds, “he doesn’t want to pay a dime in tax, and he doesn’t want anybody [else] to do it, either.”
Bruce deposited $2 million in an account for the group, which earned interest in the amount of $38,000 in 2005, $55,000 in 2006, and $85,000 in 2007, which Bruce failed to report to state and federal taxing authorities as income. During those time periods, Bruce used these funds as his own.
Bruce also was indicted for filing a false tax return on income he earned during the 2005 tax year and failing to file a tax return concerning income he earned during the 2006 and 2007 tax years, and on attempts to influence a public servant, a class-four felony and the most serious charge Bruce faced.
Prosecutors say Bruce evaded his tax responsibilities by funneling his income through a non-profit that he created in 2001 called Active Citizens Together, and failing to report that income to the Department of Revenue.
He faces up to 6 years in prison and $500,000 in fines when he is sentenced on Feb. 13, 2012.
He must also surrender his US passport within 36 hours after prosecutors argued he is a flight risk… [Pols emphasis]
Details coming, but that’s some sweet irony in the headline.
A fully expected development, given the enormous fiscal implications of the decision against the state regarding its constitutional obligation to provide a “thorough and uniform” public education system in the Lobato vs. Colorado suit. From a press release this morning:
Gov. John Hickenlooper released this statement today about the Lobato v. Colorado court case:
“It is clear after closely reviewing the judge’s decision in Lobato v. Colorado and consulting with Attorney General John Suthers that a final resolution of the constitutional and legal issues involved in the case require an appeal to the Colorado Supreme Court.
“The judge’s decision provided little practical guidance on how the state should fund a ‘thorough and uniform’ system of public education. Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the Constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.
“There are more appropriate venues for a vigorous and informed public debate about the state’s spending priorities. We look forward to a swift decision in this case so the people of Colorado and their elected representatives can participate in the school funding conversation.”
Yesterday’s big news in Colorado was the significantly improved revenue projections delivered to the Joint Budget Committee by Gov. John Hickenlooper’s chief economist Henry Sobanet. As the Pueblo Chieftain’sPatrick Malonereports today:
An unexpectedly strong revenue forecast on Tuesday compelled Gov. John Hickenlooper to withdraw his proposal to cut $89 million from K-12 education total.
Now anticipated windfalls of $231 million for the current fiscal year and $115 million next year freed up the funds, the Office of State Planning and Budgeting told the Joint Budget Committee. Previous projections showed the state faced a budget shortfall of more than $500 million…
Hickenlooper’s revised budget proposal does not seek to change the $98.6 million that the governor recommended withholding from the Senior Homestead Exemption. House Republicans have been staunch that restoring the tax break for senior citizens who are longtime homeowners should be a key priority.
“While I am disappointed that Governor Hickenlooper continues to propose a property tax increase on Colorado’s seniors most in need, Colorado’s slow economic recovery gives us reason for optimism,” said House Majority Leader Amy Stephens, R-Monument.
With revenues back on the upswing, Gov. Hickenlooper’s first priority is restoring funding to public education–which has seen some $700 million in cuts in the last few years. The improving revenue picture is welcome news, but it needs to be kept in perspective to the massive cuts we’ve seen in recent years. And we’re not even talking about the looming challenges presented by the Lobato vs. Colorado case, where a judge has ruled that Colorado’s education funding system is both inadequate and not rationally related to the requirements imposed on the system.
It’s fully expected for Republicans to make as large a stink as they possibly can over the homestead property tax exemption for senior citizens, even though it was the same economist Henry Sobanet, working for Republican former Gov. Bill Owens, who originally proposed cutting that program back in 2003. We’ve been much amused by representatives like Sen. Nancy Spencerailing against Democrats for cutting the homestead exemption, just like she did during 2003′s much less severe recession.
With all of this in mind, we’d like to show you a fascinating transcript forwarded to us last weekend. The transcript is from a public conversation between the media and elected officials that occurred during a “pre-legislative session” Q&A. Specifically of interest is a back and forth between Tim Hoover of the Denver paper to House Speaker Frank McNulty on the wrangling over the homestead exemption. Hoover has some pointed questions about who really benefits from a fully-realized homestead exemption, and McNulty’s answers are ambiguous and evasive at best.
McNulty: Our perspective is a little bit different than that that’s been shared by our Democrat colleagues and by Governor Hickenlooper. We don’t believe now is the right time… That it’s never the right time to increase property taxes on those seniors who have been hardest hit by this recession…
We understand there will be a dialogue that takes place. We will be constructive participants in that dialogue. But understand that our view- the place from which we start is much different than where some of my Democrat colleagues are starting. We are starting from the position that is a bad idea to raise property taxes on those seniors in Colorado who have been hardest hit by this recession.
Hoover: when you talk about hardest hit in this recession one of the complaints about the senior homestead exemption is that there’s no means test for it so people with ski chalets get it and conversely, people who don’t own homes but are elderly and quite poor, either they are renting or they have sold their homes within 10 years or whatever to downsize or be responsible, they don’t get it and they need it the most. [Pols emphasis] Would you guys, I mean Republicans, be open to statutorily enacting some kind of means test to try to dole out and whittle down the size of that 100 million?
McNulty: we have been all along, we have been proponents of Asset testing for benefits like this, but of course it has to happen across the board. We can’t pick one program like this and say we are going to asset test it and not make that same effort for other similar programs.
Hoover: like what?
McNulty: other entitlement programs where if you meet certain criteria you are eligible for that government program. And so Asset testing is a reasonable and responsible discussion to have, and certainly I’m willing to be a constructive participant in that discussion…
Reportedly, Hoover then asked McNulty what entitlement programs are not subject to an asset test–since Medicaid, for example, is. But unfortunately, McNulty’s only real talking point about seniors had already been used twice. And be assured, the politically active Republican donors who care about the homestead exemption do not want any means or asset testing.
Look, folks, we understand on a certain level why Republicans put up a perennial fight over the homestead exemption, even though they originated the current practice of sacrificing it to balance the budget. It’s a straightforward appeal to senior citizen voters who stand to benefit. But on the larger battlefield of fiscal responsibility, and exigent needs the state is slowly regaining the ability to meet, this is a political loser for them. Chieftain:
Rep. Tom Massey, R-Poncha Springs, was instrumental in budget negotiations earlier this year to reduce cuts to education by $67 million. He agrees with fellow Republicans that the Senior Homestead Exemption is important, but said it should take a back seat to funding schools. [Pols emphasis]
“We think it’s a great day for the children of Colorado,” said a jubilant Kathleen Gebhardt, one of the plaintiff’s attorneys, who was giving a presentation on the lawsuit at the Colorado Association of School Boards convention when she got the news. “We’re calling on the legislature to step up immediately and fix the problem.”
Mike Saccone, spokesman for Attorney General John Suthers, said, “We are going to consult with the governor in the coming days on this decision. However, if you read the opinion, the judge clearly invited an appeal and, at this point, an appeal is likely. The attorney general is disappointed in the ruling but not surprised. It was clearly very tempting for the judge to wade into what is a public policy debate.”
The lawsuit did not include a dollar figure or ask Denver District Judge Sheila Rappaport to order the state to pay up or provide a specific amount. Instead, it asked the court to decide whether the state school finance system fails to meet constitutional requirements and if the legislature should be ordered to come up with a new one…
Studies done for the plaintiffs estimate that “full funding” of Colorado schools could cost $2 to $4 billion more a year than the state spends now. Such increases would wreck the state budget and decimate other programs say Gov. John Hickenlooper, a defendant, and Suthers, who oversaw the state’s defense.
UPDATE #2: A meaty but by no means comprehensive excerpt from Judge Sheila Rappaport’s massive tome of a ruling follows–read the whole decision here, and get comfortable because it’s going to take awhile. Please liberally post excerpts of your own (it’s public domain after all) from any part of the decision you find noteworthy. And the bottom line on page 182:
The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. [Pols emphasis] These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall “provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”
In a landmark case over education funding, a judge has sided with a group of parents and school districts and ruled that the state of Colorado is underfunding its schools, possibly by billions of dollars…
The decision will likely be appealed by the state, which said before the trial began that a ruling for the plaintiffs would force Colorado to direct roughly $4 billion in additional funding toward schools, leaving little money in the general fund to adequately fund other needs like transportation, corrections and health care.
The state already spends close to half its general fund on education, although per pupil funding has been in steady decline over the last decade with Colorado now spending $2,000 less per student than the national average.
Details coming: a few minutes ago, Denver District Court Judge Sheila Rappaport ruled in favor of plaintiffs in the landmark Lobato vs. Colorado lawsuit filed by rural school districts–which charged that public education funding in the state of Colorado is not meeting the “thorough and uniform” test prescribed in the state constitution. Though subject to appeal, this is a major development that could well result in sweeping changes to Colorado fiscal policy.
We’ll update shortly with coverage and statements.
Page 158: The State introduced testimony from several members of the State Board of Education and other witnesses for its case-in-chief. However, the Court notes that much of the State’s testimony actually bolstered Plaintiffs’ arguments in this case, and certain other contrary testimony lacked factual support…
Page 176: The Court has found that in 1993 the General Assembly adopted HB 93-1313 that committed the State to develop and implement standards-based education as the anchor to the educational accountability system. HB 93-1313 was the foundation for the transformation of public education in Colorado. In 1994, the General Assembly adopted the Public School Finance Act of 1994 (the PSFA), the centerpiece of the school finance system. The PSFA established the basic funding mechanism for school district general fund (operating) revenues that has been in place since then. From this contemporaneous starting point, the two systems, which were not aligned to begin with, have radically diverged.
The following findings are essentially undisputed: When the PSFA was enacted, the General Assembly set the statewide base funding amount by working backwards from the total funding that it intended to appropriate and carrying forward preexisting school district expenditure levels. There was no effort to analyze the relationship to the actual costs to provide an education of any particular quality. The failure to do any cost analysis and to provide for funding based on such an analysis demonstrates the irrationality of the existing school finance system. Montoy v. State of Kansas, 102 P.3d 1160, 1164 (KS 2005).
In the past two years, the General Assembly, through the implementation of a negative factor, has actually decreased public school funding by what now totals nearly one billion dollars. The amount of the budget cuts and the method by which they were implemented are completely unrelated to the costs of providing the mandated standards-based education system. The budget cuts have aggravated the irrationality of the finance system by arbitrarily reducing funding with no educational rationale whatsoever…
Recent amendments to the standards-based education system have substantially increased the costs of public education. In 2008 the General Assembly adopted CAP4K, that mandated a complete revision of state content standards, programs of instruction, and assessments all aligned to accomplish universal student proficiency and postsecondary and workforce readiness. This was followed in 2009 by the Education Accountability Act that established accreditation standards for school districts based upon meeting the goals of CAP4K and imposed sanctions up to and including district closure for failure to meet those goals within fixed time frames. Most recently, the 2010 effective teachers amendments (SB 10-191) imposed new teacher and principal evaluation systems founded in student growth as measured by achievement on CSAP and other standardized tests…
The evidence also establishes that funding for categorical programs and for capital construction are completely unrelated to the actual costs of providing the services and facilities necessary to meet the mandate of the Education Clause. Capital construction funding in particular is now and has always been totally dependent on highly unequal local property tax wealth. For many school districts, particularly those in rural, poverty areas this method of funding capital needs has proved to be fundamentally inadequate, inequitable, and irrational. The recently adopted BEST program provides limited assistance, but is not sufficient to overcome generations of statutory underfunding. The deplorable conditions of numerous rural schools bears witness to this proposition.
The Court therefore concludes that the entire system of public school finance, including the PSFA, categorical programs, and capital construction funding, is not rationally related to the mandate of the Education Clause.
Page 177: The public school finance system falls short of providing sufficient funding to meet the mandate of the Education Clause and standards-based education.
Defendants contend that it is not possible to analyze the costs of meeting the mandates of the Education Clause. If that argument were accepted, the Education Clause and the directives of the Supreme Court would be meaningless. To the contrary, the standards-based education system provides a comprehensively detailed model of education standards, programs, assessments, and achievement goals. The costs of meeting those mandates can be rationally estimated.
Page 178: Due to lack of access to adequate financial resources, the Plaintiff School Districts and the school districts where Individual Plaintiffs reside (collectively, the “School Districts”) are unable to provide the educational programs, services, instructional materials, equipment, technology, and capital facilities necessary to assure all children an education that meets the mandates of the Education Clause and standards-based education.
The Court finds that due to the irrational funding system and significant underfunding, rural and urban poverty School Districts are unable to hire, compensate, and retain effective, highly qualified teachers and administrators; to provide the curriculum, technology, textbooks, and other instructional materials necessary to meet student performance expectations; and to construct, maintain, renovate school buildings and facilities. Many of these School Districts are relegated to obsolete textbooks and materials, lack of necessary computers and internet connectivity, and dilapidated and unsafe classroom and other facilities. These School Districts have been for many years and are today unable to respond effectively to the changing demands of standards-based education.
Page 182: The Court finds that the Colorado public school finance system is unconstitutional. Evidence establishes that the finance system must be revised to assure that funding is rationally related to the actual costs of providing a thorough and uniform system of public education. It is also apparent that increased funding will be required. These are appropriately legislative and executive functions in the first instance. Thus, the Supreme Court has directed that this Court shall “provide the legislature with an appropriate period of time to change the funding system so as to bring the system in compliance with the Colorado Constitution.”
Colorado has not met the legal minimum for funding schools since 2008, and a budget analyst said Wednesday that projections show the trend will continue through the 2015-16 budget cycle.
A staff economist told Joint Budget Committee members that if the cuts to education persist, Colorado could be on a road to falling short of the most basic constitutional requirement to provide a “thorough and uniform” public education system. Meanwhile, the state already is facing a lawsuit that claims it doesn’t meet that standard.
JBC staffer Carolyn Kampman recommended the General Assembly consider changing the laws that govern school finance in the state to rectify its structural deficiencies.
“I’m projecting by 2015-16 you won’t even have enough money to meet Amendment 23,” Kampman said…
She recommended the Legislature consider changes to the school finance formula, revamping Amendment 23 or seek increased revenue to comply with its most basic constitutional obligation.
According to Joint Budget Committee staff, the state would have to increase education funding by over $800 million in order to fully fund the system as prescribed by law. As you know, the proposed budget from John Hickenlooper proposes another $89 million in cuts, not increases. And what happens in 2015 when we violate, with no sleight-of-hand able to any longer conceal, the constitutional education funding mandates of Amendment 23? Is the Taxpayer’s Bill of Rights (TABOR) the only part of the Colorado Constitution that matters?
A lawsuit filed in late May of this year by 34 past and present lawmakers seeks to overturn the amendment. The suit challenges TABOR’s constitutionality on the grounds that rigid tax and spending limits obstruct the General Assembly’s obligation to govern. After TABOR’s passing, state representative Doug Bruce, the measure’s champion, said TABOR “was the most important event in Colorado since statehood.”
TABOR’s critics say the measure has deeply harmed education funding and public health programs in the state.
In the interim since 1992, Bruce has staunchly defended the measure. His political activities in the state have also included numerous other anti-tax initiatives, hiding from subpoenas, illegally practicing law, and failing to pay taxes (no surprise there)…
Nevertheless Doug Bruce is ad nauseum gleeful over Gov. John Hickenlooper’s request this week, as the named defendant in the case, for the lawsuit challenging Bruce’s 1992 Taxpayers’ Bill of Rights (TABOR) as an unconstitutional usurpation of legislative power to be dismissed. Hickenlooper has likewise, as we’ve discussed, weighed in against a suit from rural school districts challenging the constitutional adequacy of Colorado’s education funding mechanisms.
As governor, of course, Hickenlooper has an obligation to argue the state’s case, and defend the efficacy of state law. Beyond that, there are legitimate arguments for defending the process from being declared constitutionally broken–at the federal constitutional level with the TABOR lawsuit, or at the state level with Lobato vs. Colorado. They all boil down to one central premise: “the system can work.” We really do think that everyone who values both the democratic and republican (lower case) aspects of our system should be receptive to this idea.
But in both cases, can Hickenlooper prove it works; or has Bruce already proven otherwise?
Heart-wrenching stuff from the Durango Herald’sJoe Hanel:
The plaintiffs, who include Montezuma-Cortez school district, want the courts to declare that Colorado is violating its own constitution by depriving students of a quality education – a verdict that could require billions of dollars more to be spent on schools…
Textbooks are outdated, and [Cortez Middle School teacher Justine] Bayles can’t assign science homework because there aren’t enough books to go around, she said.
Keefauver, a fourth-grade teacher at Kemper Elementary School, pays for field trips out of his own pocket. He also buys basic supplies such as paper and pencils.
“My kids deserve the same opportunities as any kids in the state of Colorado, any kids in the country,” Keefauver said. “It’s unfair that they have to do without some of the things I had as a student growing up, things that we even had five, six or seven years ago.”
The testimony from teachers in rural school districts who are party to this suit, building a case about the difficulty meeting the most basic educational needs, seeks to prove that minimum constitutional guarantees of a “thorough and uniform” public education system throughout the state of Colorado are being violated. Opponents, including Gov. John Hickenlooper who we’re inclined to believe does value quality public education, argue that the constitution doesn’t address funding levels and that this is a question for the legislature. Other, more conservative opponents assert that funding alone won’t help school districts meet the standard.
It’s for Judge Sheila Rappaport to decide, but we’ll say this: we know what teachers make, and we find the notion of them paying out of pocket for their students’ paper and pencils to be somewhere between reprehensible and criminal. And if that doesn’t underscore the point about “minimum standards” plaintiffs are trying to make, we honestly don’t know what could.
A group of parents and 21 school districts – including Montezuma-Cortez – is suing the state in a case called Lobato v. Colorado, claiming inadequate funding for schools. Opening arguments took most of the morning Monday.
“This case begins with the constitution and ends with children,” said Kenzo Kawanabe, who made the plaintiffs’ opening argument.
The plaintiffs are basing their case on Colorado’s constitution, which requires a “thorough and uniform” system of education and local control of schools. They claim the state is violating both principles by not paying enough for schools, even as the Legislature passes more education-reform laws that school districts must follow…
The plaintiffs aren’t asking Denver District Judge Sheila Rappaport to order the extra funding, but they do want her to tell the Legislature that its school-funding formula is unconstitutional and needs to be changed.
Schools districts already use nearly half the state’s general fund budget, so such a ruling would require either steep cuts to other departments or a tax increase.
The state is going to argue that more money will not make the schools better.
Plaintiffs argue that Colorado schools are structurally underfunded by billions–somewhere between $1.4 and $3.6 billion dollars per year. In an excellent Colorado Public Radio report yesterday fairly examining both sides of this debate, Bruce Caughey of the Colorado Association of School Executives argues that it would require a minimum of an additional $1.5 billion per year for Colorado’s public school funding to simply reach the national average.
State officials including Gov. John Hickenlooper have come out in opposition to the plaintiffs in Lobato vs. Colorado, arguing that the constitution did not provide guidance on funding levels, and that this is a job better left to the legislature and the voters–particularly, though Gov. Hickenlooper didn’t say it, since Colorado is bound by the 1992 Taxpayer’s Bill of Rights to submit all tax increases to a vote.
However, one of the plaintiffs’ main arguments is the interlocking constitutional limitations and spending mandates in Colorado that have left the legislature unable to appropriate a constitutionally adequate level of funding for public schools. A combination of the Gallagher Amendment restricting property taxes and TABOR throttling the state’s ability to make up the difference, plaintiffs argue that the legislature–and every local school district in the state–has been placed in a constitutionally impermissible situation.
We’ve been talking about the Lobato case for years now as it has slowly wended its way toward trial. If they do prevail in court, and the many appeals such a victory would be sure to draw, it could dramatically shake up Colorado politics. The state could be forced to remedy the situation–maybe by neutering TABOR? Perhaps a comprehensive ballot measure or measures, with some nasty debt-ceiling style “triggers” threatening the reluctant? The possibilities!
Don’t get us wrong. We do understand and are sympathetic to the arguments made by defenders of the legislative process, and their warnings of chaos–and political fallout–from a court ruling in favor of the plaintiffs in Lobato vs. Colorado. But we have to tell you, after years of watching Colorado hover at the bottom of rankings for state education funding without hope of remedy, and listening to the bleak stories of rural school districts like the one profiled in the CPR report above…a constitutional adequacy smackdown does have its allure, folks.
Senior legislators declined to get involved Monday in a lawsuit that claims the Taxpayer’s Bill of Rights violated the U.S. Constitution.
Speaker of the House Frank McNulty, R-Highlands Ranch, wanted the Legislature’s Executive Committee to oppose the lawsuit, but his idea deadlocked on a 3-3 tie, with Democrats opposing him.
Five Democratic lawmakers are plaintiffs in the federal lawsuit, Kerr v. Hickenlooper, which claims that TABOR violates the U.S. Constitution’s guarantee that every state have a “republican form of government.” TABOR requires all tax increases to pass a popular vote, and the plaintiffs say that makes Colorado more like a direct democracy, rather than a republic, as the framers of the Constitution had envisioned.
McNulty is quoted in the story talking about protecting taxpayers, but he and other Colorado Republicans may find themselves on the wrong side of public opinion these days. Recent national polls have shown that the public is not opposed to tax increases and does not believe that budget problems can be solved only with cuts. Being a champion of TABOR doesn’t hold the same appeal today that it did 10 years ago.
As the Associated Press reports, Doug Bruce used his lunch break today (while facing charges of tax evasion) to file a legal challenge against a marijuana legalization ballot measure:
Douglas Bruce of Colorado Springs challenged the proposed constitutional amendment in a filing to the state Supreme Court. He argues the proposal to make pot legal for adults over 21 doesn’t properly say that it would raise taxes.
A proponent who brought the legalization proposal says he thought the amendment was clear that, if it’s approved, pot would face a 15 percent excise tax…
…Bruce filed the challenge on a lunch break from an arraignment on a more immediate legal matter. Bruce is facing felony tax evasion charges in Denver District Court. Authorities say he failed to pay taxes on a charity of his. Bruce maintains he is innocent of the charge.
To recap, the “genius” who created TABOR, who may or may not be an attorney, is complaining about a ballot measure that raises taxes while he defends himself from charges that he doesn’t pay taxes anyway. Why, exactly, is anyone taking him seriously?