brief in opposition to motion to dismiss - Colorado Attorney General

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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
Page 1 and 2: DISTRICT COURT, CITY AND COUNTY OFD
Page 3 and 4: system of public schools throughout
Page 5 and 6: Amendment 23 was not intended to an
Page 7 and 8: evenues they can raise, receive, an
Page 9 and 10: electorate, reacting against the de
Page 11 and 12: State to fund a thorough and unifor
Page 13 and 14: People v. District Court, 196 Colo.
Page 15 and 16: with an informal foster family.Ther
Page 17: In his concurring opinion, Justice
Page 20 and 21: Implicit are supportive services: (
Page 22 and 23: if the districts lack sufficient fu
Page 28 and 29: The general assembly can reprioriti
Page 30 and 31: state auditor and treasurer from is
Page 32 and 33: There is nothing fair or just about
Page 34 and 35: Defendants offer revenues raised in
Page 36 and 37: a state must be deemed commensurate
Page 38 and 39: local over state control of instruc
Page 40: CERTIFICATE OF SERVICEI hereby cert

brief in opposition to motion to dismiss - Colorado Attorney General

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