Monday, October 19, 2009

Judicial Activism?

Today’s Colorado Supreme Court ruling found that the courts can determine whether the state provides an adequate level of funding for K-12 education.

Here is what the state Constitution says:

Section 2. Establishment and maintenance of public schools.

The general assembly shall, as soon as practicable, provide for the establishment and maintenance of a thorough and uniform system of free public schools throughout the state, wherein all residents of the state, between the ages of six and twenty-one years, may be educated gratuitously. One or more public schools shall be maintained in each school district within the state, at least three months in each year; any school district failing to have such school shall not be entitled to receive any portion of the school fund for that year.

It might surprise some to read that I don’t consider this ruling “judicial activism”; it may be stretching their authority, but if you believe as I do that they have judicial review, the right to determine whether a law is constitutionally sound, then they can look at our spending and review it’s constitutionality.

The Constitution also has this part:


The powers of the government of this state are divided into three distinct departments,--the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

It also says this:

Section 1. General assembly - initiative and referendum.

(1) The legislative power of the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of the general assembly and also reserve power at their own option to approve or reject at the polls any act or item, section, or part of any act of the general assembly.

Which means that while the court has the right to say the legislature is or isn’t providing a thorough and uniform level of education, they don’t have the right to say how much can or has to be spent. That would constitute a genuine Constitutional crisis.

They have traditionally understood this and found the following:


Constitution is limitation on plenary power of general assembly. The constitution is not a grant of power to the general assembly, but the general assembly is invested with plenary power for all the purposes of civil government, and the constitution is but a limitation upon that power. People ex rel. Rhodes v. Fleming, 10 Colo. 553, 16 P. 298 (1887); Colo. State Civil Serv. Employees Ass'n v. Love, 167 Colo. 436, 448 P.2d 624 (1968).

General assembly determines its constitutional duties. The judicial cannot say to the legislative department that it has, or has not, performed its constitutional duties. That the legislative department must determine for itself, independent of either of the other departments of government, by passing such legislation as, in its judgment, the constitution requires. In re Senate Resolution No. 4, 54 Colo. 262, 130 P. 333 (1913).

And general assembly is free to choose any method which is appropriate to reach a proper governmental end. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973).

Legislative power is authority to make laws and to appropriate state funds. MacManus v. Love, 179 Colo. 218, 499 P.2d 609 (1972).

Taxation is indisputably legislative prerogative. Gates Rubber Co. v. South Sub. Metro. Recreation & Park Dist., 183 Colo. 222, 516 P.2d 436 (1973).

If a change in the state sales and use tax law is desired, it must be accomplished by the general assembly, for neither the director of revenue nor the supreme court is empowered with taxing authority. Weed v. Occhiato, 175 Colo. 509, 488 P.2d 877 (1971).

Only the general assembly has the power to amend laws and enact taxing statutes. Miller Int'l, Inc. v. State Dept. of Rev., 646 P.2d 341 (Colo. 1982).

These last citations are of earlier court rulings.

Anyone who has taken and understood poly sci 101 or American government 101 understands that the legislative branch controls the purse strings. Under our state Constitution, the judicial branch has the authority to determine whether the school finance act is constitutional, whether it provides a thorough and uniform education; they’ve done that before with regard to uniform. I think they will have as much luck defining thorough as courts have had defining pornography. Good luck.

Finally, it is clear that the court cannot tell the legislature how much to spend or how much to tax. If they try that, it would constitute judicial activism and I would be inclined to tell them to go to hell.


  1. Go to hell is putting it mildly.

  2. Senator Brophy -
    I am shocked that you DON'T consider this a blatant case of judicial activism - or better, judicial usurpation (of legislative authority).
    If you as a legislator won't stand against unconstitutional usurpation of the legislative branch's proper role and authority by the Colorado Supreme Court - who will?
    All political questions - as Justice Rice points out in her dissent - are NOT "justiciable" (in other words, some issues are a matter of policy, NOT a matter of law).
    This ruling sends us further down the slippery slope of judges REALLY "ruling" from the bench. The Mullarkey Majority on OUR Supreme Court have again and again asserted that their word is law - constitutional restrictions be damned.

    This latest ruling IS judicial activism - and you should be among the loudest voices telling our Supreme Court, in your words, to "go to hell."
    For more information on this and other outrageous Colorado Supreme Court rulings, visit

  3. Talk about smoke and mirrors. If this wasn't judicial activism then the definition needs to be changed.