The Colorado Supreme Court overturned Denver District Judge Sheila Rappaport and upheld the constitutionality of Colorado’s school funding system, as predicted by Colorado Courts Examiner Matt Arnold in an article published earlier this weekend:
Colorado Supreme Court to issue ruling on Lobato lawsuit (called the “SuperBowl of school funding litigation”) Tuesday
The Lobato lawsuit was originally filed in 2005; it was rejected at both the trial court level and in the Colorado Court of Appeals before narrowly (4-3) receiving new life in one of the Mullarkey Majority’s final (and most notorious) rulings in October 2009. The Mullarkey Majority overturned lower courts that had held (correctly) that school funding decisions are a matter of policy – not law – and are therefore the job of elected legislators – not appointed judges – to decide.
The 2009 Mullarkey Court ruling sent the case back to the trial court, and two years later (9 December 2011) Denver District Judge Sheila Rappaport issued a 183-page ruling finding for the plaintiffs – which was almost immediately appealed by the state (a bipartisan decision by Governor Hickenlooper and Attorney General Suthers) and joined in the appeal by the State Board of Education).
Although “reading the tea leaves” and predicting an outcome is always fraught with danger, it was clear from oral arguments in March that the justices who had participated in the 2009 Lobato ruling had not since shifted their opinion on the merits of the case.
However, what has changed in the interim (due in no small part to the efforts of Clear The Bench Colorado) is the composition of the state’s highest court – as two of the “unjust justices” who had previously voted to keep the Lobato lawsuit alive (Justice Alex Martinez and former Chief Justice Mary Mullarkey) have since resigned from the court (the former, after having received the lowest “retain” vote percentage of any incumbent Colorado Supreme Court justice in the state’s history – at 59% – and the latter quitting in advance of the retention vote rather than face the voters, in the face of a popular judicial accountability movement). Mullarkey’s replacement, Justice Monica Marquez, recused herself (appropriately) from this case, having taken part in earlier decisions while representing the state as an assistant attorney general, leaving the balance of power in deciding the case to recently appointed Justice Brian Boatright. Note that both Justice Boatright and Justice Marquez are subject to a retention vote in 2014.
Matt Arnold’s previously published prediction on Tuesday’s pending ruling:
Given that the justices who voted on the previous appearance of the Lobato case before the Colorado Supreme Court are unlikely to change their positions, the weight of the decision falls firmly on the shoulders of recently appointed Justice Brian Boatright – who will be facing the voters in the 2014 retention elections. Given the weighty constitutional issues at stake, and the potentially “devastating consequences” for the state (as well as confidence in the state’s judicial system), it is our view that Justice Boatright will do the right thing and join the previous dissenting minority in forming a new majority to overturn Judge Sheila Rappaport’s blatantly biased and political ruling.
My bet: 4-2 to overturn, upholding the Constitution.