The potential demise of the Taxpayers Bill of Rights, TABOR, will dominate political discussion in Colorado for much of the next six months.

The Colorado Supreme Court decision that cleared the path for that debate may contain an even more potent and far-reaching consequence: the weakening of stare decisis and judicial precedent.

Mario Nicolais

When the opinion came out, the dissent from Justice Monica Marquez immediately caught my eye.

Marquez may be my favorite justice on the Colorado bench, even though I know we hold many different perspectives and I don’t always agree with her decisions (particularly when she’s ruled against my clients!).

She writes with precision and clarity and always makes well-reasoned, analytical arguments, frequently with a little bite to them. She may not appreciate it, but in many ways her style reminds me a bit of the late Justice Antonin Scalia.

So, when Marquez dissented from the opinion penned by Justice Richard Gabriel, another member of the presumed liberal block, I couldn’t wait to read it and see what drove the disagreement.

As Marquez wrote, “by ignoring our actual holding and rationale [in previous decisions], the majority blithely deems decisions spanning close to a quarter century that have relied on that precedent as not ‘analytically sound,’ and ‘disapprove[s]’ an entire body of this court’s case law … today’s decision necessarily overrules those cases, and does so without justification or regard for principles of stare decisis.”

That is about as close as a judge can get to screaming in a written opinion.

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And I agree with Marquez whole-heartedly. While I have praised Gabriel for his judicial discretion in the past, this decision missed the mark.

Almost since its inception, TABOR detractors have sought to excise it from the state constitution. Those efforts historically crashed against the state’s prohibition against ballot measures that contain more than a “single-subject.”

The catch is that TABOR itself wouldn’t have met this standard, but Coloradans voted to pass it before the requirement took effect. In fact, as Marquez pointed out, the single-subject rule is a direct result of the broad, convoluted ballot measure that implemented TABOR.

Because prior Supreme Court decision have ruled that repeal measures targeted at repeal of a multi-subject law, including TABOR, constate a multi-subject ballot measure, opponents’ attempts have been thwarted.

Until now.

Gabriel’s decision goes to great lengths to explain away — or in legal parlance, differentiate — the current case from those previously decided. Specifically, Gabriel characterizes prior holdings as dicta, non-binding legalese musings in an opinion, or substantially different due to a repeal-and-replace mechanism. Consequently, he finds that the court has not ruled on this specific issue before and is unconstrained by any prior ruling.

Gabriel’s approach rightly made Marquez flip her judicial lid. Prior to being appointed to the bench, Marquez practiced in election law, and I’m sure she dealt with many ballot title issues while at the Colorado Attorney General’s Office. She’s lived much of the history Gabriel so willingly tossed aside.

That isn’t to say Marquez is an advocate for TABOR. I would bet my house she personally abhors the measure. But more important than her personal political opinions, Marquez believes in the institution of the judiciary and the sanctity of its decisions.

That means that the precedent set by previous decisions must carry great weight. When judges deviate from that sacred mandate, it erodes confidence in the judicial branch staying above the partisan fray of its legislative and executive sisters.

That is the principle Marquez so forcefully defended and the majority willfully ignored.

TABOR remains the last hill for Colorado liberals to climb after conquering both houses of the state legislature and statewide offices.

Now thanks to the Colorado Supreme Court, they will get their shot. However, we shouldn’t overlook the price we all paid when the court undercut judicial precedent in the process.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq

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Mario Nicolais

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