Amendment 23 author Cary Kennedy had a rough cross-examination, and the first real legal tussling erupted Friday afternoon as the Lobato trial ended its second week.
Kennedy, state treasurer from 2007 to early this year, has been a central figure in school finance discussions and decisions for more than a decade. She was subpoenaed to be an expert witness for the plaintiffs, a large group of parents and school districts that is suing the state, claiming Colorado’s school finance system doesn’t meet the “thorough and uniform” education requirements of the state constitution. She recently was named chief financial officer for the City and County of Denver.
Most of Kennedy’s testimony, elicited with detailed questions by plaintiffs’ lawyer Kenzo Kawanabe, sketched out the tortuous history of Colorado school finance from the early 1980s, where state per-pupil spending exceeded the national average, to the deep budget cuts of recent years.
Key points of her testimony included:
- Amendment 23, passed by voters in 2000 to create a formula for dedicated K-12 funding, was intended not to fund a “thorough and uniform” system but to restore funding to 1988 levels and help schools keep pace with inflation in the future.
- The recent narrow legislative interpretation of Amendment 23, which has had the effect of cutting school funding, has “an enormous reversal of what was promised to the voters and what the voters said they wanted.”
- “There’s enormous inequity across the state” in school funding.
- The state system is not “thorough and uniform.” She said, “The structure has been severely eroded over time … we don’t have the resources … to provide an adequate level of spending per student to accomplish the state’s education goals.”
Kennedy’s testimony opened a can of procedural worms because her testimony repeatedly referenced the 1992 Taxpayer’s Bill of Rights, which sets strict limits on the growth of state and local revenues.
The attorney general’s office has argued since the lawsuit was filed in 2005 that TABOR and other constitutional provisions put limits on legislative spending and thereby provide a defense against the plaintiffs’ claims. Denver District Judge Sheila Rappaport ruled before the trial started that the TABOR argument (and arguments about other demands on the state budget) would not be legal issues in the case. (Read that ruling. And get more details about the legal issues in our Lobato Case Primer.)
When he rose to cross-examine Kennedy, Assistant Attorney General Jonathan Fero argued that the plaintiffs had opened the TABOR issue by having Kennedy testify about it. That prompted a flurry of objections and lawyerly back-and-forth, but Rappaport ruled Fero could cross-examine Kennedy about her TABOR testimony. (The broader issue about TABOR evidence wasn’t settled Friday and likely will resurface later.)
Fero had Kennedy on the defensive as he asked her about things she’d said in a pretrial deposition and in past public statements about the legislature’s lack of flexibility because of TABOR and about the proper interpretation of A23. He even quizzed Kennedy about statements in the 2000 voters’ guide on A23. Kawanabe raise numerous objections to Fero’s questions, some sustained, some not.
Kennedy repeated acknowledged that she’d said various things that Fero asked about, but several times she tried to put those statements in contexts that hadn’t been mentioned by Fero.
Fero also used as evidence a Dec. 4, 2009, Education News Colorado article (trial exhibit 4603) about a Kennedy speech to the Colorado Association of School Boards. Fero pointed to a quote in the article in which Kennedy praised budget-balancing efforts by the governor and legislature.
Rising to question Kennedy again after Fero was done, Kawanabe pointed to another quote in which Kennedy made clear her feelings that legislative budget cuts violated A23.
Kawanabe reserved the right to question Kennedy further at a later time, and the 10th day of the trial ended abruptly just before 5 p.m. “I guess we’re in recess,” Rappaport said brightly.
Highlights of the day
TONE: Most of the day (and Thursday as well) was much less tense, with a parade of parent, teacher and administrator witnesses from the Colorado Springs District 11, Pueblo City and Boulder Valley districts testifying about the budget challenges and academic shortcomings facing their schools.
Friday’s most poignant testimony came from Pueblo West resident Herbert Conboy, a plaintiff in the case. He talked calmly but movingly about the challenges faced by his two children and one foster child at Pueblo West High School. He said they didn’t receive the academic help the needed, and that his handicapped foster daughter was challenged by accessibility issues. All have graduated but are struggling to find jobs and go to college, he said.
“Not one of my three can” go to college without remediation, he said. “I hope the schools eventually will get funded properly.”
Evidence projected on a screen during Conboy’s testimony included his children’s report cards and CSAP scores.
QUOTE: “They’re not truant officers, they’re attendance advocates.” – Ellen Miller-Brown, Boulder chief academic officer, describing the staff members who work to get students to return to school.
MANEUVERING: See above.
DOCUMENTS: Read detailed background on the case here and see our archive of Lobato stories.
UPCOMING: Former House Speaker Andrew Romanoff, a close associate of Kennedy’s and author of an unsuccessful 2008 school funding ballot proposal, may testify for the plaintiffs on Monday.
