Colorado Supreme Court gives go-ahead to schools funding trial

The justices rule, 4-3, that courts can decide whether state funding is sufficient.
By Tim Hoover
The Denver Post

In an opinion that could eventually have profound implications for the state budget, the Colorado Supreme Court ruled Monday that a challenge to whether the state spends enough on public schools can go forward.

In a 4-3 decision, the state's high court overturned the ruling of two lower courts that said the question of how much school funding is enough is one for lawmakers to decide, not the courts.

The ruling Monday means the plaintiffs, who include parents from eight school districts across the state and 14 school districts from the San Luis Valley, can now go to Denver District Court and try to prove the state does not provide enough money for education.

"The state has never figured out how much it costs to provide an education that meets the constitution," said Alex Halpern, an attorney for the plaintiffs.

This is one of the key points in the lawsuit and education in Colorado. The Constitution says "thorough," but we've never looked at what it would take to give every student in Colorado a thorough education.

Halpern said he expected a trial on the question of funding adequacy could go to court in about a year.

Attorney General John Suthers, who defended the state in the case, said the decision is not good news for Colorado taxpayers.

"The majority opinion suggests the plaintiffs, who are seeking additional tax funding that could potentially involve billions of dollars, might find relief from the courts even though the legislature and the voters have determined current educational funding is adequate," Suthers, a Republican, said in a statement.

This isn't quite true. The voters haven't ever said whether or not we put enough money into education. The last time they were asked, in 2000, the passed Amendment 23 which required the legislature to increase the amount of money that's going to schools. And they were pretty specific that Amendment 23 set a minimum amount of money, not necessarily a sufficient amount.

Legislators have varying views on how well we fund schools. I don't think are funding is adequate and I know there are a lot of legislators who agree. Just because we vote for the School Finance Act, or for the budget, doesn't mean we believe it's spending enough on education -- we make do with what we have and what we can get.

Potential impact is huge Rep. Jack Pommer, D-Boulder, a member of the legislature's Joint Budget Committee and a key lawmaker involved in school finance issues, also said the ultimate impact of the ruling could be huge.

"I think it's good for education but bad for the budget," Pommer said. "If they find that our education funding is not thorough, it puts the onus on us to fix that, and I don't see how we could fix it without more money."

We've taken the view that without enough tests, enough commissions, enough requirements on schools and enough talk, education in Colorado will improve. It hasn't worked and it won't in the future. A lot of legislators say more money won't help. Oddly, they never apply that view to highway construction and maintenance.

Sen. Keith King, R-Colorado Springs, another lawmaker involved in school finance issues, said any challenge to school-funding adequacy would take years to resolve. He doubted a challenge would be successful.

"I think the judiciary would have a very challenging row to hoe to say what we are funding in Colorado is not adequate," King said, "but I've been surprised by courts in Colorado before."

Plaintiffs originally filed the case in 2005, arguing that the state was not spending enough to meet the requirement in the state constitution to provide a "thorough and uniform" system of school funding.

The group of parents and school districts argued that the school-funding system did not adequately provide for disabled, poor or minority students and those who don't speak English and come from low property-value districts.

But Denver District Judge Michael Martinez in 2006 threw out the case, ruling that because the current funding system complied with Amendment 23, the voter-approved measure that requires education funding to increase every year by at least the rate of inflation, the system complied with the constitution and the courts had no say in the matter.

Requiring school funding to go up with inflation just means it stays the same from year to year after you figure in costs. It's hardly a definition of a thorough education. Or uniform, for that matter.

A Colorado Court of Appeals panel upheld the decision in 2008.

But the state's high court Monday overturned both lower courts, declaring that Amendment 23 "neither relates to nor concerns the 'thorough and uniform' mandate" in the state constitution.

Ruling that courts could not decide what is a proper level of education funding "would give the legislative branch unchecked power, potentially allowing it to ignore its constitutional responsibility to fashion and to fund a 'thorough and uniform' system of public education," the Supreme Court said in its opinion.

Dissent: "Thorough" not defined
In a dissent, Justice Nancy Rice said the constitution places the issue "squarely and solely in the legislative ambit."

Sure, but what if the legislature doesn't obey the constitution?

She was joined in the dissent by Justices Nathan Coats and Allison Eid.

"There is no national standard from which this court could adopt a definition of 'thorough,' and more importantly, the varying definitions other states ascribe to the term illustrate no consensus on what 'thorough' means," Rice wrote. "As such, any definition we might construe would necessarily constitute a policy determination. "

Odd how some people who believe in states rights suddenly need a national standard when it's convenient. The Colorado Constitution doesn't call for meeting national standards, it sets its own standard.

It's not hard to construe a definition; the legislature has put plenty of them into law already. Just defer to the legislature, pick a legislatively-approved definition, and apply it. Of course, the we put education standards in law assuming only other people will have to measure up to them, like teaches and school boards, but laws sometimes boomerang on the people who write them.

And, of course, once courts begin to make policy, it is difficult to stop."

The state is facing its worst budget crisis since the Great Depression and has already filled a $1.8 billion shortfall over the past two budget cycles. In September, lawmakers learned revenues likely would be another $240 million short in the current 2009-10 budget year that ends in June.

Gov. Bill Ritter, a Democrat, is considering a cut to public-school funding for the next fiscal year that would result in at least a $170 million net reduction over the current year. Some education groups say that cut could violate Amendment 23.

And this decision won't make "reinterpreting" Amendment 23 any easier."

Tim Hoover: 303-954-1626 or thoover@denverpost.com

Governor proposes cutting $632 million from budget

DENVER (Map, News) - Gov. Bill Ritter recommended Friday that lawmakers cut $632 million from the current state budget, with major reductions for higher education, public education and health care. He also warned that more cuts are coming.

Ritter said his top priorities are public safety and public health, and despite his proposed cuts, he said he wants to protect higher education as much as he can.

Todd Saliman, Ritter's budget director, told lawmakers the state faces a $632 million shortfall in this year's $18.6 billion operating budget - and that that figure could soar to more than $1 billion over the next two years.

I guess this is technically accurate, but it doesn't describe the problem very well.  The $18.6 billion is Colorado's total budget.  The general fund is part of it, but is only about $7.5 billion.  The $632 million shortfall is in the general fund and $632 billion is a much bigger part of $7.5 billion than it is of $18.6 billion.

"The governor's plan is to try to fairly distribute the pain across the entire state government," Saliman told the Joint Budget Committee, which will have to vote on final cuts in coming weeks before working on more cuts for next year's budget.

Ritter recommended eliminating $20 million from state contributions to public schools, $5 million for charter school construction and $1.2 million set aside for teacher recruiting.

He called for cutting $30 million from higher education and $3.1 million from the children's basic health plan. Another $13 million could be saved by putting a cap of $5,000 for businesses that are allowed to keep sales taxes to cover expenses.

Ritter also wants to freeze 64 construction projects on top of 12 already frozen, saving $95 million.

Jane Urschel, deputy director of the Colorado Association of School Boards, said school boards don't want to get into a fight with higher education over which branch of education bears the brunt of the crisis. She said eliminating programs for early childhood education may just be the beginning.

"Promises can't be kept. There's no money," she said.

University of Colorado President Bruce Benson said the state needs to loosen the reins on colleges and universities to give them greater freedom. He said higher education never fully recovered from the last recession that began in 2002 and that it's again on the chopping block.

Benson said state laws that bar universities from entering multiyear contracts, for example, make it almost impossible to work with other schools on research grants. He said new construction has been put on hold, and only critical positions are being filled.

Rep. Jack Pommer, a member of the Joint Budget Committee, said it could take 10 years for higher education to recover under the budget proposal. He noted that many services, including prison guards and child welfare, are in jeopardy.

Actually, I was pointing out that some parts of state government still haven't recovered from our last round of budget cutting that lasted from 2001 through 2003.  The state contribution to higher ed would have gotten back up to it's 2001 level this year if we weren't cutting it again. 

We still have fewer correctional officers than we did in 2001.

Child welfare is a particularly horrible example.  Over the last few years a number of children have died in foster care in Colorado.  An investigation determined that a key reason for the deaths was our lack of training for child welfare case workers.  We cut the training during the last recession.  We're planning to reinstate it, but it's going to mean cutting some other critical area of the budget.

"It seems like we can either cut everything, or as much as we can, to a point where we're doing a lousy job on everything, or we can say that Colorado can no longer afford the government that it had before the tax cuts and the recession and all of that, get rid of some big things, and then do a good job on all of the rest," Pommer said.

State's economic decline creates roadblock for lawmakers pushing to pass Jessica's Law

By MIKE SACCONE
Saturday, November 15, 2008

Low revenue forecasts and the state’s economic decline could hamstring a push by Western Slope Republican politicians to institute tougher minimum sentences and more oversight of sex offenders.

Lawmakers on the Joint Budget Committee said legislation supported by incoming Senate Minority Leader Josh Penry, R-Grand Junction, and other Republican lawmakers to implement mandatory minimum sentences for child molesters from Jessica’s Law probably will command a steep price tag.

Sen.-elect Al White, R-Hayden, said the merits of implementing Jessica’s Law aside, the measure’s sponsors can expect a “hugely expensive” price tag to accompany their legislation.

White said any bill that increases mandatory prison sentences is sure to drive a multimillion-dollar price tag for the costs of building new prison beds as well as the ongoing expenses of housing and guarding inmates.

Under state law, anyone convicted of sexually assaulting a child could face anywhere from two years up to life in prison.

Under Jessica’s Law, someone convicted of sexually assaulting a child 16 years old or younger would have a mandatory minimum 25-year prison term, according to the Colorado Legislative Council.

Penry and Rep. Frank McNulty, R-Highlands Ranch, pushed during the 2007 legislative session to implement mandatory 15-year minimum sentences for sex offenders, but the bill failed to clear the House Judiciary Committee.

McNulty said the bill’s price tag of more than $13 million in its first year contributed to the bill’s defeat.

Rep. Jack Pommer, D-Boulder, said he likes the idea of cracking down on sex offenders, but the lawmakers behind bringing Jessica’s Law to Colorado need to figure out a way to fund their proposal.

“A lot of people have great ideas for spending money, but they don’t come up with ideas for what you cut,” said Pommer, who sits on the budget panel. “I hope if somebody is going to pitch this, they come and say, ‘This is what we want to cut.’ ”

He said lawmakers finding a funding stream is especially important with the economic downturn sapping the state’s tax revenue.

Colorado is one of eight states, including Wyoming, that have not implemented some form of Jessica’s Law.

Penry said if he and his colleagues encounter a fiscal stumbling block, they plan to push to implement Jessica’s Law, even if it takes more than one session.

“The fight to enact Jessica’s Law will be a marathon and not a sprint. … I don’t have any illusion that it will happen quickly or immediately,” Penry said. “It will probably be a multiyear fight to get it enacted, but it’s an issue we have to keep pushing because it’s the right thing to do.”

Penry said having public sentiment on the side of enacting tougher sanctions for sex offenders will help.

Rep.-elect Laura Bradford, R-Collbran, who made bringing Jessica’s Law to Colorado an issue during her campaign this year, said she plans to support the coalition in any way she can.

Imprisoning the budget

As inmate population booms, state faces a crisis

Colorado is taking a hard look at its prison-sentencing system, and not a moment too soon.

Between 1985 and 2005, Colorado's prison population quintupled, rising from 4,000 to 20,000 inmates. Two years from now, the population will probably reach 25,000, meaning the number of prison inmates will have risen more than six times in 24 years. In the same period, the state's entire population rose by only about 1.5 times.

The exploding prison population comes with a significant price tag: It costs between $40,000 and $90,000 to build each new prison bed, and it costs about $26,000 annually to incarcerate each inmate. With 1,000 extra convicts a year, it all adds up.

But it doesn't compute within the confines of the state budget. In 2005, the Colorado Department of Corrections spent about $533 million, up from $57 million in 1985. In short, the cost of state prisons has risen about six times faster than the population that must fund prisons.

Why does state population matter? Colorado's Taxpayer's Bill of Rights, passed in 1992, limits the growth of state revenue to the rate of inflation plus population growth. It also limits spending growth to no more than 6 percent annually.

Even with the five-year TABOR "time out" voters approved last year, the prison problem will prove difficult to manage. And since the supply of beds is so costly, it only makes sense to consider the demand.

The steady rise of the prison population is partly a product of stiff sentencing laws passed by the Legislature. The effect is a burgeoning population of inmates guilty of committing lower-level drug offenses and other non-violent crimes.

Last week, the Colorado Lawyers Committee released a report recommending the establishment of a sentencing commission, the Rocky Mountain News reported. Sentencing commissions have helped 17 states curb their prison expenditures and add a dose of reason to sentencing guidelines.

Highlighting the commissions' effectiveness, the lawyers' group noted the experience of North Carolina, which, with the help of a sentencing commission, cut its prison population by more than half in four years, the News reported.

The North Carolina Legislature adopted a new sentencing structure that stiffened punishment for violent offenders and encouraged alternative sentences for non-violent criminals. Such a system, the lawyers' group noted, might not be right for Colorado. But we would be remiss if we did not at least explore the options.

Some lawmakers are ready to take up the cause. During last fall's campaign, for instance, State Rep. Jack Pommer, a Boulder Democrat, effectively and chillingly outlined the clear and present need to confront this issue.

Sentencing commissions and sentencing guidelines are not intrinsically captivating. The topics become more compelling when one considers the looming budgetary havoc. When they return to work this week, legislators should confront this issue in earnest.

Subpoena powers sought

Bill would boost accounting board

By Arthur Kane
Denver Post Capitol Bureau

Friday, February 14, 2003 - Legislators approved bills that would give accounting regulators subpoena power and government officials more information about their investments as part of a series of corporate corruption measures heard in a House committee Thursday.

But the Business Affairs and Labor Committee killed a bill that holds company directors responsible for their company's environmental and safety violations. It would also have prohibited the shredding of documents by companies under investigation.

Tony Van Westerum, an attorney representing corporate clients, said the bill is too broad and criminal laws already prohibit shredding. "I had lunch today, and I think that was at the expense of the environment," he said of House Bill 1203 by John Pommer, D-Boulder. "Almost everything humans do are at the expense of the environment."

But Rex Wilmouth, of Colorado Public Interest Research Group, said the bill is important to preserve people's retirement plans and keep the economy healthy.

"Our economy prospers only when the honest companies are not disadvantaged by dishonest companies," he said.

The bill failed 8-5 because legislators were concerned that it was too broad.

"Holding a director responsible for any impact on the environment" is too much, said Rep. Angie Paccione, D-Fort Collins.

A bill reinstating subpoena powers to the state Board of Accountancy passed despite misgivings by some legislators.

The state Supreme Court three years ago overturned the board's broad subpoena powers. HB 1197, by Rep. Mike May, R-Douglas County, would reinstate the powers for accountants' work documents if they attest to a company's financial condition.

The committee also passed HB 1204, by Rep. Joe Stengel, R-Littleton. The bill would require investment firms that do business with the state or local government to disclose any financial interests they have in the securities they are selling.

A fourth bill, by Rep. Michael Garcia, D-Aurora, was killed after the sponsor said federal legislation already covers the situation. HB 1277 would have required auditors to wait a year before taking jobs with companies they are auditing.