brief in opposition to motion to dismiss - Colorado Attorney General

DISTRICT COURT, CITY AND COUNTY OFDENVER,COLORADO1437 Bannock StreetDenver, Colorado 80202Plaintiff:Anthony Lobato, et al.Defendant:State of Colorado, et al.Attorneys for Plaintiff:Name: Alexander Halpern, #7704Address:1426 Pearl Street, Suite 201Boulder, Colorado 80302Phone Number: (303) 449-6180FAX Number: (303) 449-6181E-mail: ahalpern@halpernllc.com• COURT USE ONLY •Case Number: 05 CV 4794Div: 9EFILED DocumentCO Denver County District Court 2nd JDFiling Date: Sep 29 2005 4:21PM MDTFiling ID: 6908773Review Clerk: Suzann M ShottsName: Kathleen J. Gebhardt, #12800Address: Kathleen J. Gebhardt LLC1426 Pearl Street, Suite 201Boulder, Colorado 80302Phone Number: (303) 449-6180Email: gebhardt@indra.comBRIEF IN OPPOSITION TO MOTION TO DISMISSThe Plaintiffs, by their counsel, submit the following Brief in Opposition to Motion toDismiss.SUMMARY OF THE FACTS ALLEGED IN THE COMPLAINTPlaintiffs, parents and children in school districts across the state and the fourteen schooldistricts in the San Luis Valley, bring this action challenging Colorado’s public school financesystem. Plaintiffs allege that the public school finance system denies their rights under articleIX, sections 2 and 15, and article X, section 3(1)(a) of the Colorado Constitution. In the most

asic terms, Plaintiffs contend that as a result of under-funding and irrational and unequalfunding of public education, the State of Colorado is failing to provide a constitutionallyadequate, quality education; that the public school finance system fails to provide the financialresources necessary for school districts to exercise their authority to control instruction in theirschools; and that radically unequal and irrational variations in property tax mill levies to fund thestate’s duty to provide an adequate public education constitute a state-wide, non-uniformproperty tax.In pertinent part, article IX, section 2, of the Colorado Constitution (the EducationClause) mandates that the “general assembly shall . . . provide for the establishment andmaintenance of a thorough and uniform system of free public schools throughout the state.”Plaintiffs contend that the Education Clause includes a substantive guarantee of aconstitutionally adequate, quality education for all school-age Colorado residents. The generalassembly has acknowledged this guarantee in legislation, e.g.:[S]ection 2 of article IX of the state constitution requires the general assembly to providefor the establishment and maintenance of a thorough and uniform system of free publicschools. The state therefore has an obligation to ensure that every student has a chance toattend a school that will provide an opportunity for a quality education. 1In order to fulfill its constitutional duty, the State must provide sufficient financialresources for the public schools in a manner that is intentionally, rationally, and demonstrablyrelated to the accomplishment of the qualitative mandate of the Education Clause. The generalassembly has also acknowledged this duty. The Public School Finance Act of 1994 (PSFA), theprincipal source of education funding, “is enacted in furtherance of the general assembly’s dutyunder section 2 of article IX of the state constitution to provide for a thorough and uniform1COLO. REV. STAT. §22-30.5-301(1).2

system of public schools throughout the state . . . .” 2Funding for public education is derived from local taxes, state funds, and, to asignificantly lesser degree, federal funds. The PSFA sets the financial base of support for eachschool district, referred to as its “total program funding.” School year 2005-06 total programfunding is projected to be approximately $4.545 billion to provide services to some 733,000school children, for an average of $6,164 per pupil. Of this total, $2.835 billion (62.4 percent)will be provided by state funding and $1.710 billion (37.6 percent) from local school districtproperty taxes.The PSFA formula and funding levels that were established when it was amended in1994 were not based on an analytical determination of the actual costs to provide aconstitutionally adequate, quality education, but merely rolled forward historical spendingpatterns that were distorted by variations in local taxable property values and politicalcompromise. The problem was then magnified by years of under-funding. From 1994 until theimplementation of “Amendment 23” 3 in 2002, Colorado failed in every year to increase PSFAfunding at the minimal rate necessary to defray increased school district costs due to inflation.The result is a $3.4 billion cumulative shortfall in PSFA funding against inflation alone over theten year period from 1994 to 2004.Since the 1994 amendments to the PSFA, the state has undertaken a comprehensivereform of the Colorado public education system, 4 and, in 2002 the State Board of Education2§22-54-102(1). See Board of County Comm’rs of Douglas County CO v. Bainbridge, Inc., 929P.2d 621, 709 (Colo. 1997).3COLO. CONST., Art. IX, §17.4Key elements of education reform include the implementation of a state-wide standards-basededucation system incorporating mandatory minimum public school content standards andassociated student performance objectives; universal assessment of public school student3

(State Board) adopted the Colorado Consolidated State Plan (Consolidated State Plan) toconform to the requirements of the federal No Child Left Behind Act of 2001 (NCLB). 5 TheState has thereby established a system with standards, goals, objectives, methods, and results thatcreates a baseline measure of whether the public school finance system provides sufficientfinancial resources to meet the State’s obligation under the Education Clause.PSFA funding levels have never been adjusted to address the actual costs to provideevery student with a constitutionally adequate, quality education, or an education that meets thestandards and goals mandated by education reform legislation and the Colorado ConsolidatedState Plan. In fact, the PSFA fails to provide school districts with sufficient funds or fundingability to meet the actual and foreseeable costs of educating their students. A statewide study bythe Colorado School Finance Project (CSFP), conducted in accordance with nationally acceptedmethods of analysis, found that in the 2001-02 school year none of the 176 Colorado schooldistricts were able to raise and expend general operating funds at a level sufficient to provide aneducation that could meet the standards and mandates of the education reform legislation, muchless the Education Clause. The CSFP study found that in that year alone Colorado publicschools were under-funded with respect to meeting the requirements of education reformlegislation by at least $500 million.proficiency with respect to these content standards by standardized testing; comparative rating ofthe performance of students, schools, and school districts measured by the results of theseassessments; and school and school district accountability for student assessment results andprogress.5The Consolidated State Plan establishes a statewide accountability system for improving theacademic achievement of all students, identifying and turning around low-performing schools,providing high-quality alternatives to students in low-performing schools, and improvingaccountability, teaching, and learning by the use of state assessment systems, all designed toensure that students meet challenging state academic achievement and content standards and are4

Amendment 23 was not intended to and has not remedied the fundamental failure toestablish a thorough and uniform system of public education. Because the applicable inflationfactor was only one-tenth of one percent (0.1%), in state fiscal year 2005-06, public schoolfunding was increased by only 1.1 percent. This increase was based solely on the mechanicalapplication of the Amendment 23 formula and not on an analysis or even consideration of theactual cost of meeting the mandates of the Education Clause, education reform legislation, or theConsolidated State Plan. This nominal increase was substantially below the actual increase infixed costs experienced by school districts and failed to provide sufficient additional funding toprovide all Colorado students with the opportunity to obtain a constitutionally adequate, qualityeducation.The State has acknowledged that providing educational services to students from lowersocio-economic backgrounds, ethnic and racial minorities, non-English speaking families,students with disabilities, and gifted and talented students requires funding above the PSFA totalprogram amount. The State has also acknowledged the necessity to fund preschool and full-daykindergarten programs. The public school finance system attempts to address the costs ofserving these students through PSFA formula adjustments and “categorical” funding programs.However, in every case, the public school finance system fails to provide sufficient funding andto allocate funding in a manner rationally determined to meet the actual costs of providing forthese educational needs and the rights of under-served student populations. As a result, thesestudents in particular do not receive an adequate education, and general operating fundsincreasing achievement in compliance with a schedule of annual yearly progress designed toaccomplish one hundred percent academic proficiency by the school year 2013-14.5

necessary to provide an adequate education for all students must be diverted to meet thesespecial needs.Article IX, section 15 of the Colorado Constitution directs the general assembly to“provide for the organization of school districts of convenient size,” governed by locally electedboards of education and empowers the directors of the local boards of education with the“control of instruction in the public schools of their respective districts.” Control of instructionby locally elected school boards is an integral component of a thorough and uniform system ofpublic education. 6The Colorado public school finance system’s failure to provide sufficientfinancial resources to the school districts of the state to permit local boards of education toprovide services, materials, and facilities necessary to meet the qualitative mandate of theEducation Clause is unconstitutional under article IX, sections 2 and 15 of the ColoradoConstitution.Education reform legislation and the Consolidated State Plan have imposed instructionaland other substantive mandates upon school districts without analyzing funding needs orproviding the means to fund the accomplishment of those mandates. This legislationsubstantially expanded the role of the State in areas of instruction, program, and educationalpolicy historically controlled by school districts; significantly increased the testing andadministrative tasks of school districts; and has imposed substantial increases in the costs ofproviding a constitutionally adequate, quality education without providing school districts withsufficient funding or the means to obtain sufficient funding to meet those costs.School districts are controlled and strictly limited by the public school finance laws in the6 See Owens v. Colorado Congress of Parents, Teachers and Student, 92 P.3d 933, 938-9 (Colo.2004).6

evenues they can raise, receive, and expend to provide education programs to the students intheir schools. The cost of providing a constitutionally adequate, quality education exceeds themaximum amount of funding that is available to school districts under the Colorado system ofpublic school finance. The public school finance system prevents school districts from obtainingadequate funding to meet the statutory and constitutional rights of their constituents, in violationof the constitutional authority vested in the local boards of education and the Education Clause.School district capital outlay expenditures in excess of PSFA capital reserve funding arefinanced by contracting for bonded indebtedness. School district bonded debt can be paid onlyby revenues from local mill levies on the taxable property within the boundaries of the district,and school districts are limited by statute in the amount of capital funding for which they maycontract. The system of financing capital outlay expenditures does not provide revenueaccording to the educational needs of students within each district; does not provide sufficientfunding for adequate facilities, technological infrastructure, and equipment; prevents schooldistricts from adequately addressing capital issues related to growth; contravenes theconstitutional mandate of local control, particularly in “property poor” school districts; and doesnot allocate the tax burden among Colorado citizens equally or uniformly.The value of taxable property per pupil varies widely among school districts. “Propertypoor” school districts in particular are unable to raise sufficient funds for capital outlay purposesto provide students with facilities necessary to assure a constitutionally adequate, qualityeducation. Taxpayers in property poor districts must pay significantly higher mill levies andbear a greater individual tax burden than similarly situated property owners in “propertywealthy” districts.7

ARGUMENTI. The Standard of ReviewDefendants must satisfy the demanding standard of review for a Rule 12(b)(5) motion:A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim upon which relief canbe granted serves as a test of the formal sufficiency of a plaintiff’s complaint. Dorman v.Petrol Aspen, 914 P.2d 909, 911 (Colo.1996). The chief function of a complaint is togive a defendant notice of the transaction or occurrence that is the subject of a plaintiff’slawsuit. Rosenthal v. Dean Witter Reynolds, Inc., 908 P.2d 1095, 1100 (Colo.1995). AC.R.C.P. 12(b)(5) motion to dismiss is looked upon with disfavor, and a complaintshould not be dismissed unless it appears beyond a doubt that a plaintiff can prove no setof facts in support of her claim which would entitle her to relief. Id.; Dunlap v. Colo.Springs Cablevision, Inc., 829 P.2d 1286, 1291 (Colo.1992). A complaint should not bedismissed for failure to state a claim so long as the plaintiff is entitled to some relief uponany theory of the law. Rosenthal, 908 P.2d at 1099; Dunlap, 829 P.2d at 1290.When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), all averments of materialfact must be accepted as true, and all of the allegations in the complaint must be viewedin the light most favorable to the plaintiff. Dorman, 914 P.2d at 911. Furthermore, whenreviewing a motion to dismiss a complaint, the court may only consider matters statedwithin the complaint itself, and may not consider information outside of the confines ofthat pleading. Rosenthal, 908 P.2d at 1099.Public Service Co. of Colo. v. Van Wyk, 27 P.3d 377, 385-386 (Colo. 2001).II.Amendment 23 Does not Preclude Education Clause ClaimsIn 1876, the framers of the Colorado Constitution affirmed the people’s commitment topublic education by mandating the establishment and maintenance of a thorough and uniformsystem of free public schools. Then, as now, thoughtful citizens recognized that publiceducation is the cornerstone of a modern democratic republic. 7 In November 2000, the7In a petition to the Constitutional Convention, a citizen’s group expressed the “belief that free,non-sectarian common schools are essential to the life and perpetuity of our form of government,and constitute the only security for a free, untrammeled ballot . . . .” Proceedings of theConstitutional Convention, at 277.8

electorate, reacting against the debilitating effects of the TABOR Amendment 8 and in order toreverse the persistent failure of the general assembly to provide adequate funding for publiceducation, reaffirmed this commitment by adopting Amendment 23 through the initiativeprocess. 9Now, the state agencies and officers who are principally responsible for fulfilling theseeducational mandates cynically contend that by passing Amendment 23 the people actuallydiminished the Education Clause and obviated the general assembly’s duty to determine andfund an adequate public education. While Amendment 23 indisputably sets a minimum level ofannual increases in funding for public education, there is no justification for arguing that itthereby also defines the amount of funding required to meet the qualitative standards of theEducation Clause.“[A] court’s duty in interpreting a constitutional amendment is to give effect to the willof the people adopting such amendment.” In re Great Outdoors Colorado Trust Fund, 913 P.2d533, 538 (Colo. 1996) (citation omitted). “To determine intent, courts first examine the languageof the amendment and give words their plain and commonly understood meaning.” Zaner v. Cityof Brighton, 917 P.2d 280, 283 (Colo. 1996) (citations omitted). “When the language of anamendment is plain, its meaning clear, and no absurdity involved, constitutional provisions mustbe declared and enforced as written.” In re Great Outdoors Colorado Trust Fund, supra(citation omitted).8The “Taxpayer’s Bill of Rights,” COLO. CONST., art. X, §20.9 With respect to the purposes of Amendment 23, See, An Analysis of the 2000 Statewide BallotProposals and Recommendations on Retention of Judges, Res. Pub. No. 475-6, LegislativeCouncil of the Colorado General Assembly (2000) (the Blue Book), at 14-15 (copy attached asExhibit A to Defendants’ Motion to Dismiss).9

Amendment 23 includes three principal provisions: a mandatory, minimum level ofannual increases to public school funding; the creation and funding of a state education fund tosupport the mandated increases and to address specified compelling educational needs; and arequirement to maintain a minimum level of state public school funding effort. The purpose toestablish minimum annual funding increases could not be more plainly expressed: subsection (1),titled “Purpose,” states that for fiscal years 2001-02 through 2010-11 PSFA and categoricalprogram funding “shall grow annually at least by the rate of inflation plus an additional onepercentage point,” and, thereafter “at a rate set by the general assembly that is at least equal tothe rate of inflation.”Defendants seek to make the unambiguous language of Amendment 23 say somethingthat it manifestly does not. Nothing in the language of Amendment 23 remotely suggests apurpose to define the cost of a constitutionally adequate education. Amendment 23 does notexpressly refer to, amend, or supplant, much less diminish the qualitative mandate of theEducation Clause; nor does it attempt to define or limit the level or method of funding necessaryto fulfill that mandate. Amendment 23 certainly does not state that the most minimal level offunding permitted by its terms also constitutes sufficient funding for purposes of the EducationClause. It is not the function of a court to search out and construe some unexpressed orinadequately expressed intent of the electorate. See id., 913 P.2d at 540.Amendment 23 and the Education Clause coexist harmoniously in parallel. Defendantsdo not point to any language that is “reasonably susceptible to more than one interpretation” orother textual ambiguity in Amendment 23 that would require the court to look beyond the text.See Zaner, supra, 917 P.2d at 283. The minimum annual funding requirement advances thegoals of the Education Clause by partially mitigating the effects of TABOR on the ability of the10

State to fund a thorough and uniform system of public education. Its meaning is clear anddevoid of conflict or absurdity, whether read in isolation or in the context of the rest of theconstitution.Ultimately, Defendants depend upon mischaracterizing Plaintiffs’ claims. Plaintiffs donot claim that the Education Clause mandates a “particular minimum state-level contribution forfunding public education services in Colorado.” 10Plaintiffs seek neither a minimum nor amaximum funding level, 11 but one that intentionally, accurately, and fully provides fundingsufficient to meet the qualitative standards of the Education Clause and permits school districtsto fulfill their duty to control instruction in their schools.This mischaracterization is critical to Defendants’ argument; indeed, it is all the argumentthey have. Amendment 23 undoubtedly establishes a minimum annual increase in publiceducation funding that the legislature cannot fail to meet. Equally clearly, it does not establish afiscal safe harbor for the State or diminish the educational rights of the people by defining athorough and uniform system of public education to be whatever education can be afforded at therate of 1994 spending plus an inflation factor. 12Based upon the unambiguous language ofAmendment 23 itself, Defendants’ argument fails for complete absence of textual support.10 Motion to Dismiss, at 4.11 Paragraph 228 of the Complaint, to which Defendants’ cite, states that Plaintiffs seekinjunctive relief “[C]ompelling the Defendants to establish, fund, and maintain a thorough anduniform system of free public schools throughout the state that fulfills the qualitative mandate ofthe Education Clause and the rights guaranteed to the Plaintiffs thereunder and that is in fullcompliance with the requirements of article IX, section 15, and article X, section 3(1)(a) of theColorado Constitution.”12 The 1994 funding levels were not based upon a valid analysis of the actual costs of providing aconstitutionally adequate, quality education, and there is no basis to conclude that merelyrestoring the 1994 funding levels would provide funding that meets the mandates of theEducation Clause.11

Defendants cite the Blue Book for the obvious proposition that by the addition ofAmendment 23, “the state constitution sets a minimum increase in funding.” Like theamendment itself, the Blue Book makes no reference to the Education Clause or to the fundingof a thorough and uniform system of public education, and certainly does not include in thestatement of purposes one such as: “the proposed amendment will establish the required fundinglevel under article IX, section 2 of the constitution.”Defendants attempt to manufacture a conflict between the two constitutional provisionsand resolve it by amending or in effect repealing the Education Clause. “A conflict exists whenone provision authorizes what the other forbids or forbids what the other authorizes.” Bickel v.City of Boulder, 885 P.2d 215, 228-29 (1994). If their construction is accepted, Amendment 23implicitly amends the Education Clause by fixing an annual dollar standard of compliance withits mandate. For Defendants, the Education Clause now reads: “the general assembly shall . . .provide for the establishment and maintenance of a thorough and uniform system of free publicschools throughout the state, provided that the costs of funding such system need not exceed theamount determined by the formula set forth in article IX, section 17.” Such violence to theFramers’ mandate is contrary to the rules of construction:“Amendments by implication are not favored,” and we will not presume that the GeneralAssembly intended to change preexisting law absent a clear expression or a manifestinconsistency rendering harmonization unworkable.In re Marriage of Chalat, 112 P.3d 47, 55 (Colo. 2005) (citations omitted). Further:Repeals by implication are not favored. When two apparently contradictory statutesrelate to the same subject matter and two alternative constructions are possible, one ofwhich will result in giving effect to both statutes, while the other will invalidate onestatute, we will adopt the interpretation that gives effect to both statutes rather than theone which results in repeal of the earlier statute by implication. Here, the two sentencingprovisions are not in irreconcilable conflict. Rather they can sensibly be read together togive effect to both provisions.12

People v. District Court, 196 Colo. 249, 585 P.2d 913, 915 (Colo. 1978) (citations omitted).Even if there were an ambiguity in the relation between Amendment 23 and theEducation Clause, “where ambiguities exist, a court should favor a construction that harmonizesdifferent constitutional provisions rather than creates conflict.” In re Great Outdoors ColoradoTrust Fund, supra, 913 P.2d at 538.A “cogent element” in our construction of general terms of the constitution is theconsideration of the object to be accomplished and the mischiefs to be avoided: we areobligated to construe the constitution in such a manner as will prevent an evasion of itslegitimate operation. Each provision of the constitution, both original and amended,should be construed if possible to avoid any conflict between the different parts of theconstitution.Colorado Common Cause v. Bledsoe, 810 P.2d 201, 206 -207 (Colo. 1991) (citations omitted).The Education Clause and Amendment 23 both serve the interests of public education,the former by directing the creation of a thorough and uniform system and the latter byprotecting a minimum funding level. There is neither an express nor an unavoidably implicit“conflict” between these naturally harmonious expressions of the public will. It is only whentwo constitutional provisions cannot be harmonized that rules of construction favoring the laterin time or the specific over the general enter the analysis. That is not the case here. The courtneed not be drawn into resolving a conflict that does not exist.III.THE EDUCATION CLAUSE CLAIMS ARE JUSTICIABIALEA. The Courts Have Subject Matter Jurisdiction over Actions Brought pursuantto the Education ClauseDefendants argue that statutes enacted by the legislature pursuant to the mandate of theEducation Clause are beyond constitutional review by the judiciary and that Coloradans such asthe Plaintiffs who believe that the Education Clause creates rights in its named beneficiaries have13

no recourse to the courts to protect those rights. Defendants posit this argument on subjectmatter jurisdiction and nonjusticiability.As to the former, Defendants confound subject matter jurisdiction and nonjusticiability,failing to recognize the significant difference between the two. Powell v. McCormack, 395 U.S.486, 512 (1969); Baker v. Carr, 369 U.S. 186, 198 (1962). The district court and the ColoradoSupreme Court plainly have jurisdiction to construe the state constitution. “Pursuant toColorado Constitution Article VI, section 1, the judicial branch of Colorado government isempowered to construe the constitution’s meaning. . . . [T]he judiciary is the final arbiter of whatthe laws and the constitutions provide. Board of County Comm’rs v. Vail Associates, 19 P.3d1263, 1272 (Colo. 2001) (citations omitted). Indeed, “[o]nly the judicial branch holds theultimate authority to construe the constitution’s meaning.” Washington County Bd. ofEqualization v. Petron Dev. Co., 109 P.3d 146, 149 (Colo. 2005).The Colorado Supreme Court has frequently exercised subject matter jurisdiction overEducation Clause claims. In Lujan v. Colorado State Bd. of Educ., 649 P.2d 1005 (Colo. 1982),the Court affirmed its function “to rule on the constitutionality of our state’s [school finance]system” and interpreted the thorough and uniform provision not to “require that the GeneralAssembly establish a central public school finance system restricting each school district toequal expenditures per student.” Id., 649 P.2d at 1025. The Lujan Court cited several cases inwhich it had previously construed the Education Clause. For example, in Marshall v. SchoolDist. RE #3 Morgan County, 191 Colo. 451, 553 P.2d 784 (1976), the Court held that theEducation Clause does not require school districts to provide students with free books. InFangman v. Moyers, 90 Colo. 308, 8 P.2d 762 (1932), the Court found that the Education Clauseassured the right of a child of a broken family to attend school in the district in which he resided14

with an informal foster family.Therefore, there can be no debate that the courts have subject matter jurisdiction over theconstruction of the Education Clause and may, indeed, must review the constitutionality ofstatutes enacted in its name.B. The Court Should Review the Claims in this ActionThe further question is whether legislation addressing the qualitative guarantee of theEducation Clause in particular is “justiciable.” That is to say: is there some overriding reasonwhy the courts should refrain from performing their traditional role in this particular context?The analytical structure for this inquiry is as follows:In deciding whether a case or controversy is justiciable, two determinations must bemade. We must first ascertain “whether the claim presented and the relief sought are ofthe type which admit of judicial resolution.” [Powell v. McCormack, 395 U.S. 486, 516-17 (1969).] Second, we must determine whether the controversy presents anonjusticiable “political question”; i.e., a question “the resolution of which should beeschewed by the courts,” Colorado General Assembly v. Lamm, 704 P.2d 1371, 1378(Colo. 1985), because of the separation of powers doctrine inherent in the ColoradoConstitution, Colorado Common Cause v. Bledsoe, 810 P.2d 201, 205 (Colo. 1991). SeePowell, 395 U.S. at 517.Meyer v. Lamm, 846 P.2d 862, 872 (Colo. 1993).1. Lujan v. State Board of Education Affirms the Court’s Power toConstrue the Education ClauseDefendants cite Lujan for the proposition that quality of education and school finance arepolicy questions beyond the competence of the judiciary. However, the Lujan Court plainly didinterpret the Education Clause and applied its interpretation to the finance system in the contextof the claims before it. The Court did not need to interpret the phrase “thorough and uniform” ina comprehensive manner, and so held only that the mandate is “satisfied if thorough and uniformeducational opportunities are available through state action” and does not require that15

“educational expenditures per pupil in every school district be identical.” Lujan, 649 P.2d at1024-25.The claims decided in Lujan were critically different from those brought in this action.Lujan was an equal protection claim keyed to the argument that education was a “fundamentalright;” 13 that the school finance system was therefore subject to “strict scrutiny” review; thatinequalities in expenditures per pupil existed between school districts due to variations in localproperty tax bases; and that since the finance system could not be shown to be “necessarilyrelated to a compelling governmental interest,” it was unconstitutional. Lujan, 649 P.2d at 1013-14. The strategic fulcrum of plaintiffs’ argument was that once spending inequalities wereproved, they were relieved of having to show that differences in spending levels actually causedinequalities in educational opportunity, and the burden shifted to the defense to disprove thatproposition.The Supreme Court majority recognized that they were being finessed into adopting as aconstitutional principle a hotly debated theory of educational policy:The method Colorado has chosen for funding public school education is the real focalpoint of the challenge here. We note that appellees did not allege or prove that they arebeing denied an educational opportunity. Appellees instead argue that we should accept,amidst a raging controversy, that there is a direct correlation between school financingand educational quality and opportunity. We refuse, however, to venture into the realmof social policy under the guise that there is a fundamental right to education which callsupon us to find that equal educational opportunity requires equal expenditures for eachschool child. Even if we were to accept appellees’ contention, we would, nonetheless,refuse to adopt their a priori argument whereby a lack of complete uniformity in schoolfunding between all of the school districts of Colorado necessarily leads to a violation ofthe equal protection laws in this state.Id., 649 P.2d at 1018 (emphasis added).13 This was the real focus of their Education Clause argument as well. The plaintiffs also arguedunsuccessfully that “wealth” was a suspect classification for equal protection analysis, but that is16

In his concurring opinion, Justice Erickson made very clear that the Court would notaccept an argument that amounted to a judicial finding that either the equal protection clause orthe Education Clause mandated identical expenditures, services, and facilities throughout thestate:The decision of the trial court in this case rests upon the conclusion that money is thebasic and overriding criterion for adequate education. It is basic that funds must besupplied to provide for teachers, support staff, physical facilities, texts, supplies,transportation, and the myriad of other necessities in today’s public educational system.However, I cannot adopt the premise that unless an identical amount of funds is expendedper pupil throughout the state, students in those districts receiving less than the districtwith the greatest expenditure per student are automatically denied equal educationalopportunities.Moreover, I do not believe that Art. IX, sec. 2 of the Colorado Constitution guarantees tothe children of this state a right to be educated in such a manner that all services andfacilities are identical throughout the State. In my view, such a centralized system ofeducation is not required by either the Colorado or United States Constitutions. Statedsimply, Art. IX, sec. 2 is a mandate to the State through the legislature to establish acomplete and uniform system of public education for Colorado elementary and secondaryschool students.Id., 649 P.2d at 1027 (emphasis added; citations omitted); see also, id., 649 P.2d at 1018(majority opinion) (“The constitutional mandate which requires the General Assembly toestablish ‘a thorough and uniform system of free public schools,’ is not a mandate for absoluteequality in educational services or expenditures.”).Lujan was an “equity” case seeking equality of per pupil expenditure levels amongschool districts. This action is an “adequacy” case. 14Plaintiffs contend that the EducationClause includes the substantive guarantee of a constitutionally adequate, quality education, andnot pertinent here.14 For a review of the history of school finance litigation discussing the difference between“equity” and “adequacy” claims, see School Finance Adequacy as Vertical Equity, 28 U. Mich.J.L. Reform 493 (1995)..17

There is no basis to conclude that the term “thorough and uniform system of free publicschools” is beyond the comprehension of the judiciary. The idea that the Education Clause has asubstantive component is virtually incontestable. Lujan affirms that the phrase refers toeducational “opportunities.” Id. In Fangman, the Supreme Court outlined the dimensions ofthose thorough and uniform opportunities, holding that by virtue of the Education Clause,statutes governing education should not be “narrowly and technically construed” to turn childrenaway from the school house “to grow up in idleness and ignorance,” but should be liberally andbroadly interpreted” to further the purposes of educating children “to that degree that they cancare for themselves and act the part of intelligent citizens.” Fangman, supra, 8 P.2d at 311-312,quoting McNish v. State, 74 Neb. 261, 263, 104 N.W. 186 (1905).In Lujan, the Court cites Pauley v. Kelley, 162 W.Va. 672, 255 S.E.2d 859 (1979) for a“thorough presentation of the education clauses in other states which are similar or identical toColorado’s ‘thorough and uniform’ requirement.” In that case, the West Virginia SupremeCourt, following customary standards of constitutional construction, defined both theconstitutional phrase “thorough and efficient” and identified its basic contents:We may now define a thorough and efficient system of schools: It develops, as best thestate of education expertise allows, the minds, bodies and social morality of its charges toprepare them for useful and happy occupations, recreation and citizenship, and does soeconomically.Legally recognized elements in this definition are development in every child to his orher capacity of (1) literacy; (2) ability to add, subtract, multiply and divide numbers; (3)knowledge of government to the extent that the child will be equipped as a citizen tomake informed choices among persons and issues that affect his own governance; (4)self-knowledge and knowledge of his or her total environment to allow the child tointelligently choose life work -- to know his or her options; (5) work-training andadvanced academic training as the child may intelligently choose; (6) recreationalpursuits; (7) interests in all creative arts, such as music, theatre, literature, and the visualarts; (8) social ethics, both behavioral and abstract, to facilitate compatibility with othersin this society.19

Implicit are supportive services: (1) good physical facilities, instructional materials andpersonnel; (2) careful state and local supervision to prevent waste and to monitor pupil,teacher and administrative competency.255 S.E.2d at 877. 16These decisions are not in conflict with Lujan’s holding that the Education Clause doesnot mandate equal expenditure levels. The North Carolina Supreme Court clearly distinguishedbetween adequate funding to provide a sound basic education versus equal funding:Although we have concluded that the North Carolina Constitution requires that access toa sound basic education be provided equally in every school district, we are convincedthat the equal opportunities clause . . . does not require substantially equal funding oreducational advantages in all school districts.Leandro v. State, 346 N.C. 346, 488 S.E.2d 249, 256 (1997). Accord, e.g., Roosevelt ElementarySch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806, 814 (Ariz. 1994) (“[U]nits in ‘generaland uniform’ state systems need not be exactly the same, identical, or equal. Fundingmechanisms that provide sufficient funds to educate children on substantially equal terms tend tosatisfy the general and uniform requirement.”).There are a minority of states whose courts have declined to interpret their educationclauses because of nonjusticiability. Among them, Defendants emphasize Committee forEducational Rights v. Edgar, 174 Ill. 2d 1, 672 N.E.2d 1178 (1996). Edgar was predominantlyan equity case; however, it did include an adequacy claim under the 1970 amendments to thestate’s education clause, which provided that “the State shall provide for an efficient system of16 Many other states have reached equivalent conclusions. E.g., Rose v. Council for BetterEduc., 790 S.W.2d, 186, 211-12 (Ken. 1989) (an “adequate education”); Roosevelt ElementarySch. Dist. No. 66 v. Bishop, 179 Ariz. 233, 877 P.2d 806, 814-15 (1994); DeRolph v. State, 78Ohio St. 3d. 193, 203-04, 1997 Ohio 84, 677 N.E.2d 733 (1996); Leandro v. State, 346 N.C. 346,488 S.E.2d 249, 254-57 (1997) (a “sound basic education”); Abbeville County Sch. Dist. v. State,335 S.C. 58, 515 S.E.2d 535, 539-40 (1999) (a “minimally adequate education”).20

high quality public educational institutions and services.” ILL. CONST., art. X, §1. Id., 672N.E.2d at 1183. In finding that it was not capable of defining a “high quality education,” theIllinois court relied upon recent legislative history that demonstrated that “the framers of the1970 Constitution did not intend to formulate any specific definition of ‘high quality,’ nor didthey anticipate that the concept would be defined by the courts.” Id., 672 N.E.2d at 1190. In thisrespect, Edgar is peculiarly a product of contemporary Illinois law and of limited persuasivevalue. 17 Courts have had no difficulty in defining the principles embedded in their state’seducation clauses. They are also able to identify the fundamentally necessary elements of aneducation that must be provided to meet those principles, for example:The State must assure that some essentials are provided. Children are entitled tominimally adequate physical facilities and classrooms which provide enough light, space,heat, and air to permit children to learn. Children should have access to minimallyadequate instrumentalities of learning such as desks, chairs, pencils, and reasonablycurrent textbooks. Children are also entitled to minimally adequate teaching ofreasonably up-to-date basic curricula such as reading, writing, mathematics, science, andsocial studies, by sufficient personnel adequately trained to teach those subject areas.Campaign for Fiscal Equity v. State, 86 N.Y.2d 307; 655 N.E.2d 661; 86 N.Y.2d 307, 317(N.Y.Court Apps. 1995); see also DeRolph v. State, 78 Ohio St. 3d. 193, 208, 1997 Ohio 84, 677N.E.2d 733 (1996) (“Obviously, state funding of school districts cannot be considered adequate17 Justice Freeman, dissenting from dismissal of the adequacy claim lamented the result:Despite the inestimable value of a public school education, the majority foreverforecloses any judicial inquiry into whether the legislative and executive departments ofour state government conform to the education system provision. Regardless of howabysmal educational resources and opportunity become in poor school districts, and howsevere the disparities in educational quality grow among school districts, the judiciary isnow powerless to enforce the constitution.21

if the districts lack sufficient funds to provide students a safe and healthy learningenvironment.”)The Colorado Supreme Court has interpreted the meaning of the Education Clause onnumerous occasions and has never shied away from its duty to enforce the constitution.Numerous other state courts have acted to enforce their state’s education clauses when calledupon. To accept Defendants’ approach would “essentially define the ambit of a constitutionalright by whatever a State Agency says it is.” Campaign for Fiscal Equity v. State of New York,187 Misc. 2d 1, 719 N.Y.S.2d 475, 484 (N.Y.Sup. 2001). This Court need not and should notabdicate the constitutional responsibility delegated to it by the Supreme Court.3. Education Reform Legislation Provides Legislative Standards andMeasures for Compliance with the Education ClauseThis is not a case in which the court must act in the absence of legislative interpretationof the meaning and content of the Education Clause. Education reform legislation enacted morethan a decade after Lujan is premised on the proposition that the Education Clause has aqualitative component and, indeed, creates a “fundamental right” to a free public education:Every resident of the state six years of age or older but under twenty-two years of age hasa fundamental right to a free public education that assures that such resident shall havethe opportunity to achieve the content standards adopted pursuant to this part 4 at aperformance level which is sufficient to allow such resident to become an effectivecitizen of Colorado and the United States, a productive member of the labor force, and asuccessful lifelong learner.COLO. REV. STAT. §22-7-403(2) (emphasis added).The legislature has defined the “acceptable performance level” necessary to meet theconstitutional right to an adequate education:672 N.E.2d at 1205, Freeman, J., concurring in part and dissenting in part.22

The acceptable performance level . . . shall mean the student has the subject matterknowledge and analytical skills necessary to succeed at subsequent grade levels. Forgraduating students, such acceptable performance level shall mean the student has thesubject matter knowledge and analytical skills that all high school graduates should havefor democratic citizenship, responsible adulthood, postsecondary education, andproductive careers.Id., at §22-7-402(9) (emphasis added).The legislature has also mandated a comprehensive educational accountability program“to define and measure academic and safety quality in education and thus to help the publicschools of Colorado to achieve such quality and to expand the life opportunities and options ofthe students of this state,” which program is “designed to measure objectively the quality andefficiency of the educational programs offered by the public schools.” Id., at §22-7-102(1) and(2). 18 Thus, there are ample legislative and executive programs and regulations to permitmeaningful judicial review of both the sufficiency of the legislation, programs, and regulationsadopted to fulfill the mandate of the Education Clause, both in theory and in practice, and of theadequacy of the financial resources provided to accomplish them. “[T]he Legislature hasrecognized its constitutional duty to provide for the education of the populace. Whether what theLegislature has done is sufficient to fulfill that constitutional duty is, of course, another matter.”McDuffy v. Secretary of Executive Office of Educ., 415 Mass. 545, 610-611, 615 N.E.2d 516,610 (1993).Education reform legislation alone provides a manageable basis for judicial review of theadequacy of school funding. In Kansas, where the state adopted a highly analogous system18The workings of the education reform legislation are described in some detail in Complaint 84-103.23

judicial power; that the executive cannot exercise legislative or judicial power; and that thejudiciary cannot exercise executive or legislative power. It does not prescribe exact limits of therespective powers.” MacManus v. Love, 179 Colo. 218, 499 P.2d 609, 610 (1972).Plaintiffs ask the court to exercise the traditional role of the judiciary. Judicial powerincludes “measuring legislative enactments against the standard of the constitution, and declaringthem null and void if they are violative of the constitution.” Colorado Common Cause v.Bledsoe, 810 P.2d 201, 210 (Colo. 1991). This power is limited only to the extent that a courtmay not order the legislature “to convene, consider issues, or enact specific legislation.”Beauprez v. Avalos, 42 P.3d 642, 648 (Colo. 2002); Lucchesi v. State, 807 P.2d 1185, 1189(Colo.App. 1990) (“Colo. Const. art. III prohibits the courts from ordering the legislative brancheither to adopt, or not to adopt, specific legislation.”). Plaintiffs ask the court to declare thepublic school finance system unconstitutional; Plaintiffs do not ask the court to direct theGeneral Assembly to convene or adopt specific legislation. If Defendants’ argument wereaccepted, courts could no longer overturn unconstitutional legislation if it meant that thelegislature might have to change the law to comply.Defendants’ argument that the court cannot rule on the constitutionality of a statute if itmight result in the appropriation of state funds is also wrong:[A] court has the power to enter a judgment that in order to be fully implemented mightrequire an additional appropriation by the General Assembly. . . . [Goebel v. ColoradoDepartment of Institutions, 764 P.2d 785, 799 (Colo. 1988)] stands for precisely theproposition that . . . [t]he separation of powers argument advanced by the [Department ofCorrections] goes to the collection, and not to the entry, of the judgment. Consequently,we hold that it was not error for the trial court to enter a judgment against the DOC thatin order to be fully implemented would require an additional appropriation by theGeneral Assembly, which the trial court would be powerless to order.State for Use of Dep’t of Corrections v. Pena, 855 P.2d 805, 809 (Colo. 1993) (emphasis added).26

Further, the general assembly’s “plenary power over appropriations applies only to ‘statemoneys.’” In re Interrogatories Submitted by General Assembly on House Bill 01-1098, 88 P.3d1196, 1200 (Colo. 2004). Over one-third of PSFA funding comes from locally-raised propertytaxes which are constitutionally committed to the discretion of local school district boards ofeducation and not the state legislature or agencies. Owens, supra, 92 P.3d at 943.Courts outside Colorado that have decided school finance cases have deemed it necessaryand appropriate to retain jurisdiction until the court has determined that the Defendants havecomplied with its opinion. E.g., Montoy III, supra, 112 P.3d at 929, and cases cited at 929-31.While it is quite likely that the court will find the public school finance system unconstitutional,it is nevertheless uncertain, and extended discussion of the issue of retained jurisdiction ispremature at this stage of the proceedings. Cf., Stella v. Boulder County Dep’t of Social Services,92 P.3d 910, 914-15 (2004).6. The Claims Do Not Violate the TABOR AmendmentPlaintiffs’ seek declaratory and injunctive relief; they do not request a court orderedincrease in overall State spending or taxation. “Declaratory relief, if granted, ‘does not compel[][the legislature] to pass an act . . . nor restrain[] [it] from passing an act.” Bledsoe, supra, 810P.2d at 211, quoting Lewis v. Denver City Waterworks Co., 19 Colo. 236, 238, 34 P.993, 994(1893). Defendants do not explain how the requested judicial relief can violate any of TABOR’srestrictions on increased debt, spending, or taxation. Just as there is no requested remedy thatwould violate separation of powers, there is none to conflict with TABOR.If the general assembly chooses to respond to a declaratory judgment by increasingpublic school funding, there is no reason to conclude that such an increase must violate TABOR.27

The general assembly can reprioritize state expenditures within the overall spending capsimposed by TABOR. TABOR contains no restriction on shifting state spending from oneprogram to another. Further, state-received damages are exempt from TABOR’s restrictions,and Colorado has received large sums of money from litigation, including the tobacco litigation.Or, of course, the General Assembly could secure approval for a tax or debt increase from theelectorate. 19Defendants misstate the basic premise of TABOR. TABOR does not require a vote ofthe people to authorize every increase in governmental spending. Were that true, every budgetpassed by the general assembly would need to be approved by a vote of the people as everybudget contains increases in governmental spending. Defendants cite no legal authority insupport of such a far reaching interpretation of TABOR.Defendants argue that “courts that have become involved in state educational planninghave demonstrated how difficult it is for the judiciary to prescribe any remedies for allegeddefects in a state’s educational system without any judicial standards to guide them.” 20Thisargument assumes that when this court orders a remedy, the general assembly will not comply.It is certainly premature to make such an assumption, and not a legitimate reason for this court tofail to adjudicate a constitutional claim.19Even accepting Defendants’ assumption that the general assembly would have to increaseoverall funding in response to a declaratory judgment, they further assume that voters wouldreject such a proposal. This assumption reveals a further fallacy in Defendants’ position. If noconstitutional conflict arises when voters approve increased spending, but only when they rejectsuch a proposal, the meaning of the Education Clause depends on the outcome of a popular vote.The mandate of a constitutional provision cannot vary by popular will. The very purpose of aconstitution is to place certain matters beyond the reach of routine vagaries of popular will andlodge their determination and resolution in the hands of an independent judiciary.20Defendants’ brief, p. 2328

IV.THE SYSTEM OF PROPERTY TAXATION FOR SCHOOL FUNDINGVIOLATES THE UNIFORM TAXATION REQUIREMENT OF ARTICLE X,SECTION 3Defendants contend that the uniform taxation requirement is not applicable to the widelydisparate mill levies of districts throughout the state, arguing that each district is free to set itsown rate. However, because districts' mill rates are determined by the state, and are levied for acore state purpose, the Constitution's uniformity requirement is unavoidably triggered.“Article X of the Colorado Constitution structures and limits the legislature’s taxationpowers, providing the root fairness of treatment requisite to governmental legitimacy.” Board ofCounty Comm’rs v. Vail Associates, Inc., 19 P.3d 1263, 1273 (Colo. 2001). In pertinent part,Section 3(1)(a) of Article X requires that “[e]ach property tax levy shall be uniform upon all realand personal property not exempt from taxation under this article located within the territoriallimits of the authority levying the tax.” This provision was “adopted in 1982 by referendum aspart of a more general overhaul of the constitution’s valuation and assessment provisions forproperty taxation. The court’s duty in interpreting a constitutional amendment is to give effect tothe will of people.” Washington County Bd. of Equalization v. Petron Dev. Co., 109 P.3d 146,150 (Colo. 2005). The general assembly has the duty to “provide by law for an annual taxsufficient, with other resources, to defray the estimated expenses of the state government for eachfiscal year.” COLO. CONST., Art. X, §2 (emphasis added).Public education is a state purpose, and funding public education is a state obligation.See Florman v. School Dist. No. 11, El Paso County, 6 Colo. App., 40 P. 469, 470 (1895). InWilmore v. Annear, 100 Colo. 106, 65 P.2d 1433 (Colo. 1937), a taxpayer sought to enjoin the29

state auditor and treasurer from issuing and paying warrants to school districts, alleging that itwas unconstitutional to disburse money from the general revenues of the state to public schools.In upholding the dismissal of plaintiff’s complaint, the Colorado Supreme Court held that:The establishment and financial maintenance of the public schools of the state is thecarrying out of a state and not a local or municipal purpose. The legislative departmenthad the constitutional power to make the appropriation by the act here in question. . . .By vesting the power in districts to levy and collect taxes for the support of the school orschools in such districts, the state was but adopting a means for carrying out its purposes.Id., 65 P.2d at 1437 (emphasis added).School tax levies are in fact State taxes and are subject to the uniformity requirement ofArticle X, §3(1)(a). The public school finance system incorporates state and local sources offunding in the PSFA 21 and relies exclusively on local funding for capital construction. 22In bothcases, local property taxes are capped by legislation. 23 Although property taxes are nominallyraised by the school districts, their purpose is to fund the State’s constitutional obligation toestablish and maintain a thorough and uniform system of public schools, and they are in factstate property tax levies. The State mandates the mill levies through the statutory fundinglimitations. Because the State fails to provide sufficient funding or the means to obtain sufficientfunding, the “gross funding capacity” of the public school finance system, i.e., the statutorilyfixed totalamount of funds that can be raised, is depleted, and school districts do not have any real taxingdiscretion.21 See Complaint 120-24.22See Complaint 170-71.30

School districts exercise no discretion over the amount of the mill levy for the localshare, which is fixed by statute. Each year, the State informs the school districts what their localmill levy will be for the upcoming budget year, and the school districts develop and adopt theirannual budgets within those limits. Following adjustments based on local assessed valuationsand district pupil counts, the Colorado Department of Education certifies the final mill levy tothe school districts by December 10 of each year. The districts then certify the mill levy to thecounty or counties in which they are situated, and the county commissioners levy the tax. COLO.REV. STAT. § 39-1-111(1). School districts have no control over the amount of the mill levy andare not the government that levies and collects the taxes. To call a school district a “taxingauthority” in this context distorts the meaning of “authority” past all reasonable limits. 24In Claremont School District v. Governor, 142 N.H. 462, 703 A.2d 1353 (1997), the NewHampshire Supreme Court addressed the issue of which entity is the taxing authority forproperty taxes levied to support public schools. As in Colorado, New Hampshire public schoolsreceived their funding from local property taxes, direct legislative appropriations, and federalaid. Property taxes contributed to between 74 and 89 percent of the total school revenue. TheNew Hampshire constitution required that taxes be reasonable and “in due proportion.” Theplaintiffs argued that the total value of property subject to taxation for local school revenuevaried among the cities and towns of New Hampshire. The state argued that the school tax was alocal tax and thus met the constitutional requirement of reasonability and proportionality. Inruling that the system of unequal mill levies violated that state’s constitution, the NewHampshire Supreme Court ruled:23 See Complaint 122 and 171.31

There is nothing fair or just about taxing a home or other real estate in one town at fourtimes the rate that similar property is taxes in another town to fulfill the same purpose ofmeeting the State’s educational duty. Compelling taxpayers from property-poor districtsto pay higher tax rates and thereby contribute disproportionate sums to fund education isunreasonable. Children who live in poor and rich district have the same right to aconstitutionally adequate public education. Regardless of whether existing Stateeducational standards meet the test for constitutional adequacy, the record demonstratesthat a number of plaintiff communities are unable to meet existing standards despiteassessing disproportionate and unreasonable taxes.Id., 703 A.2d at 1357.In 1994, the PSFA was amended with the purpose of equalizing local property tax milllevies across the State. When adopted, the state and local contributions to the PFSA wereapproximately equal. Since then, the state share has substantially increased and local mill levieshave become widely unequal. By 2003, the state share had increased to over sixty percent of thetotal funding. 25In 1991, 133 of 176 school districts, representing the large majority of thestate’s population, levied a uniform property of 40.080 mills. 26In 2004-05, school district milllevies for their PSFA total program ranged from 3.738 to 40.080, with a statewide average of23.812. 27 .As a result of variations in mill levies between school districts, property taxes are notuniform across the state and district by district. For example, the Primero and Hoehne SchoolDistricts are both located in rural Las Animas County. Nearly 95 percent of the assessedvaluation in Primero is in oil and gas properties, and it now has the lowest school operating levyin the state.24 No statutory definition of “taxing authority’ is found in the PFSA. The Random HouseCollege Dictionary defines an authority as one with “the power to judge, act or command.”25 Complaint at 184.26Complaint at 180.32

SchoolDistrictHome ValueSchoolFinance MillLevySchoolFinancePropertyTaxesOtherSchool MillLeviesTotalPropertyTaxes toSchoolsPrimero $100,000 2.725 $21.69 0.308 $24.14Hoehne $100,000 26.008 $207.02 2.936 $230.39Similarly, in El Paso County, Hanover School District’s mill levy is 9.067 and the next highestmill levy for the other six rural El Paso School Districts is 23.571 in the Miami-Yoder SchoolDistrict. In each case, the result is equivalent variations in property taxes.Another result of the general decline and growing disparity in mill levy rates, manyschool districts have diminished the local contribution to their budgets, thereby reducing theirability to exercise local fiscal control. The state share in many Plaintiff School Districts is morethan ninety percent of their total program, leaving very little local money for these districts.Legislative Council, Memo to Members of Interim Committee on School Finance, August 2,2005, relevant portions attached as Exhibit 1. Defendants concede that “control over localproperty tax revenue is an integral part of local control under the Education Article of theColorado Constitution.” 28The Defendants reliance on Colorado Dep’t of Social Services v. Board of CountyComm’rs of Pueblo County, 697 P.2d 1 (Colo. 1985) is misplaced. The provision of publicassistance programs is not a constitutionally mandated service, and the structure for payment ofpublic assistance programs is vastly different from that used in funding public schools. Just as inPueblo Jr. College Dist. v. Donner, 154 Colo. 26, 387 P.2d 727 (1963), school districts have nodiscretion to set the amount of their mill levies, and their function in the taxing process is purelyministerial. Id., 387 P.2d at 730.27 Complaint at 183.33

Defendants offer revenues raised in excess of total program as an example of localdiscretion. Section 22-54-107.5 once authorized additional local revenues for a supplementalcost of living adjustment, but that statute expired in 2002. This provision had very limitedapplication, in any case, being applicable exclusively to communities where the cost of livingwas very high, such as Summit and Eagle Counties.Defendants also refer to the possibility of voter mill levy overrides, arguing incorrectlythat school districts are free to raise and expend local property tax revenue in excess of thedistrict’s total program should they so choose. School districts may not simply choose to raiseand expend local property tax revenue without an authorizing vote of the people in theirrespective districts, 29 and mill levy override revenue is capped at twenty percent of the district’stotal program. 30Mill levy overrides are not equalized under the PSFA, and so suffer from thesame infirmity as the property tax revenue collected to support the PSFA. In many of thePlaintiff school districts, mill levies are much higher than the state average, property values arelow, and personal incomes are low, so passing a mill levy override election is challenging andoften fruitless. Even when these districts are able to pass such elections, the amount they areable to raise is negligible in relation to their wealthier counterparts. This discrepancy onlyfurthers the inequities caused by the constitutionally challenged school finance system.The final argument raised by defendants to support their assertion that the current system28 Motion to Dismiss at p.24.29 “The question authorized by this subsection (1) shall be submitted at an election held inaccordance with section 20 of article X of the state constitution and title 1, C.R.S.” COLO. REV.STAT. §22-54-108 (1) (emphasis added).30 “Effective July 1, 2002, the total additional local property tax revenues that may be authorizedat elections held pursuant to this section shall not exceed under any circumstances twentypercent of the district’s total program…or two hundred thousand dollars, whichever is greater…”Id., §22-54-108(3)(b)(II) (emphasis added).34

of property taxation is constitutionally valid is based on which entity retains control over theexpenditure of taxes. The issue to be resolved is not who can expend the revenue collected butwho is the “taxing authority” with the power to levy, collect, and disburse the taxes collected.That authority is not the school districts but is the State of Colorado.Defendants erroneously assert that taxes raised in one school district cannot be used tofund public education in another district, citing Belier v. Wilson, 59 Colo. 96, 147 P. 355 (1915).Belier never addresses Article X, section 3, at all. The case turns on Article IX, section 15 (thelocal control provision) and the fact that taxes were imposed upon some school districts withoutallowing the electors in that district “any voice in the selection of those who manage and controlthe school . . . .” Id., 147 P. at 356. Even if this were true in 1915, today school districts sharefinancial resources, for example, through statutorily authorized Boards of Cooperative Services.V. The School District Plaintiffs Have StandingThe School District Plaintiffs are the fourteen school districts in the San Luis Valley areaof Southern Colorado. They allege that due to under-funding and irrational funding, the publicschool finance system prevents them from exercising their constitutional authority to controlinstruction in their respective schools and thus to provide a constitutionally adequate, qualityeducation to their constituents.In general school districts, as subdivisions and instrumentalities of the state, do not havestanding to challenge the constitutionality of a state statute directing the performance of theirduties. Denver Association for Retarded Children, Inc. v. School District No. 1, 188 Colo. 310,535 P.2d 200, 316 (1975). The rationale is that, because political subdivisions exist for theconvenient administration of the state government and “[a] bsent constitutional or statutoryprovisions establishing a contrary set of circumstances, the interests of a political subdivision of35

a state must be deemed commensurate with the interest of the state for purposes of standing.”Romer v. Fountain Sanitation Dist., 898 P.2d 37, 40 (Colo. 1995) (emphasis added; citationomitted); accord, Martin v. District Court, supra, 550 P.2d at 866; Denver Urban RenewalAuthority v. Byrne, supra, 618 P.2d at 1381 (“[S]ubordinate state political subdivisions, or theirofficers, may not challenge a state statute unless expressly or impliedly empowered to do so.”).The rule is not absolute, but depends on the nature of the statute at issue and the schooldistrict’s interest in the specific case. School Dist. No. 23 (Independence) Weld County v. SchoolPlanning Committee of Weld County, 146 Colo. 241, 361 P.2d 360, 361-62 (1961). In Byrne, theCourt held that its first inquiry must be whether the school district plaintiffs “have a legallyprotected interest within a statutory or constitutional sense . . . .” Byrne, supra.In Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10 th Cir. 1998), theTenth Circuit Court of Appeals upheld the school district’s right to sue the state under theSupremacy Clause for violation of the Colorado Enabling Act, finding that “even though thedistricts owe their existence as political subdivisions to the state,” in that case the “school districtplaintiffs are ‘substantially independent’ from the state of Colorado,” and “are ‘essentially’ thebeneficiaries of the federal trust at issue here.” See also, City of Greenwood Village v.Petitioners for Proposed City of Centennial, 3 P.3d 427, 437-38 (Colo. 2000).Colorado school districts operate from a unique constitutional foundation. Article IX,§15, directs the general assembly to “provide for organization of school districts of convenientsize,” as part of the overall allocation of responsibility for public education between state andlocal governments. It empowers the directors of those school districts with “control ofinstruction” in their schools. Therefore, although the legislature indeed has the power to define36

and alter the boundaries of school districts, it is equally clear that it does not have the power toeliminate school districts entirely from the system of public education. See, Board of Educ. ofSch. Dist. No. 1 v. Booth, 984 P.2d 639, 645 (1999). “If the General Assembly wants to changethis fundamental structure, it must either seek to amend the constitution or enact legislation thatsatisfies the mandates of the Colorado Constitution.” Owens, supra, 92 P.3d at 944.In Board of County Comm’rs of Douglas County v. Bainbridge, Inc., 929 P.2d 691, 711(1996), the Court held that while providing a thorough and uniform system of public education isof state-wide importance which the Public School Finance Act helps the state to achieve,“[c]ounties and school districts also have an important interest in ensuring that the needs of thestudent population in their districts are met.” 31In Booth, the Supreme Court recognized that thecontrol of instruction provision is a source of constitutional authority in school districts, which itdefined as the “power or authority to guide and manage both the action and practice ofinstruction as well as the quality and state of instruction.” Booth, supra,, 984 P.2d at 648. Aftera review of precedent, the Court further noted that “legislation must not usurp a local board’sdecision-making authority.” Id., 984 P.2d at 649.Most recently, the Court reviewed and powerfully affirmed of the constitutional authorityof school districts under Article IX, §15, in Owens v. Colorado Congress of Parents, Teachersand Students, supra. In an extended discussion, 32 Owens articulates the “constitutional status oflocal control requirement,” and its function as an expression of the “framers’ preference . . . for31 The Court also noted that “[I]t is clear that the Finance Act does not provide adequaterevenues for school construction.” Board of County Comm’rs of Douglas County v. Bainbridge,Inc., 929 P.2d 691, 711 (1996). The Court had no difficulty in finding manageable standards toarrive at this conclusion.32See Owens v. Colorado Congress of Parents, Teachers and Students, 92 P.3d 933, 937-45(2004).37

local over state control of instruction” by the intentional creation of a “constitutional division ofpower between the state and local boards.” Id., 92 P.3d at 940 and 943-44. The Court also holdsthat local control over instruction is clearly, but not exclusively, linked to funding, andparticularly locally-raised funds. Id., 92 P.3d at 941-43.Article IX, section 15, therefore, is a source of constitutional authority and a legallyprotected interest of the boards of education of school districts. This authority is different fromand, in fact, directly counter-balances the authority of the State in matters affecting instruction inthe schools. The Plaintiff School Districts have a specific constitutional interest in this actionthat is not subsumed within those of the Defendants, and the standing to assert that interest.Even in the absence of a constitutional base such as Article IX, §15, the KentuckySupreme Court held, that school districts had standing to sue the state directly under theeducation clause:The Council 33 and the local school boards as plaintiffs in this case are statutorilyobligated to promote public education for their respective constituents – the students intheir school districts. The local districts are part and parcel of a system of commonschools created by the General Assembly, which purports to be constitutionally efficient.If the system is not efficient, the local school boards’ duty is to make every effort toremedy that situation. Included in that responsibility is the filing of this lawsuit. Thelocal school board and the Council have a judicially recognizable interest in a system ofefficient common schools, and we so recognize and declare.Rose, supra, 790 S.W.2d at 2001.CONCLUSIONFor the foregoing reasons, the Motion to Dismiss should be denied.38

Respectfully submitted this 29 th day of September, 2005Original signature on fileAlexander HalpernATTORNEY FOR PLAINTIFFOriginal signature on fileKathleen J. GebhardtATTORNEY FOR PLAINTIFF33The Council for Better Education, Inc., was a nonprofit corporation whose members weresixty-six Kentucky school districts.39

CERTIFICATE OF SERVICEI hereby certify that I have served a copy of the foregoing BRIEF IN OPPOSITION TOMOTION TO DISMISS by Lexis Nexis File and Serve, this 29 th day of September, 2005, to:Renny Fagan, Esq.John R. Sleeman, Jr., Esq.Linda S. Comer, Esq.Antony B. Dyl, Esq.Office of the Attorney General1525 Sherman Street, 5 th FloorDenver, CO 80203ATTORNEYS FOR THE STATE OF COLORADOOriginal signature on fileJaana H. Bowers40