Nicolais: A Colorado Supreme Court justice put principle over personal preference in two recent cases

When the Colorado Supreme Court issued twin pre-Christmas rulings denying political subdivisions government immunity from anti-discrimination laws, I really thought I would be writing a column lauding the outcome.

I thought I would be cheering the court’s decision to close a loophole through which organizations like Denver Health and the El Paso County Sheriff’s Office could avoid responsibility for discriminatory actions. I felt sure that I would applaud precedent that protected vulnerable populations from undue harm.

I have spent a decade advocating policies meant to end discrimination against protected classes of people, particularly members of the LGBTQ community. I believe there should be no employer, private or public, beyond the reach of anti-discrimination laws. Consequently, I thought I would be celebrating another barrier to equality broken down by the court.

And then I read Justice Monica Marquez’s dissent.

The purest form of the law often lives in dissenting opinions. While majorities frequently represent disparate approaches cobbled together for the sake of issuing a decision, dissents do not suffer from such infirmities. Dissents do not need to be diluted in the name of compromise.

Written dissents are neither necessary nor regularly provided. When a judge dedicates time to drafting a dissent, it is for the exclusive purpose of enunciating important legal principles. 

Over the past several years, I have found myself paying greater attention when I see a dissent written by Marquez. Most are eloquent and principled; she writes with a clean, clear, persuasive style.

Her dissents in Elder v. Williams and Denver Health v. Houchin are no different.

READ: Colorado Sun opinion columnists.

In Marquez’s view, the majority “strayed significantly from the plain text” of the law “by grafting an exception for statutory claims that ‘principally serve[] a societal purpose.’” It is a step too far for Marquez. 

As Marquez explained, the decision crossed the line denoting the separation of powers between the judiciary and the legislature. As she rightly noted, “an ad hoc inquiry in which courts determine which policy goals are in the ‘public interest’ … gives the appearance of judicial policymaking.” It is a dangerous precedent she is unwilling to condone in silence.

What makes the dissent by Marquez, and her devotion to the separation of powers, so extraordinary is that I believe she abhors the outcome it effects. I would not be surprised if it represented the most personally trying legal position she has made as a member of the Colorado Supreme Court.

Prior to becoming a justice, Marquez served as an advocate for antidiscrimination policies. Since taking the bench, her advocacy has been tempered by the duty of impartiality essential in a judicial officer. Yet she obviously still holds those beliefs dear.

Marquez began her dissent in Elder v. Williams by stating that it went “[w]ithout question” that antidiscrimination laws “fulfill a ‘basic responsibility of government to redress discriminatory employment practices.’” She continued that “it may well be that the compensatory damages remedy afforded by [the Colorado Anti-Discrimination Act] should, as a policy matter, be extended to employees of Colorado’s political subdivisions.”

This is the judicial parlance equivalent of declaring the current policy loathsome.

But, as Marquez wrote, “dissatisfaction with the policy choices made by the General Assembly ‘does not entitle use to overrule the legislature’s decision absent a firm conviction that the decision is irrational.’”

The easiest thing for Marquez to do would have been to cast a dissenting vote and let it rest. She did not need to argue against an outcome she likely supports personally. But that is the mark of a great justice, one willing to subvert their own interests to the rule of law.

I am glad that Brent Houchin and Timothy Williams will have their days in court. If their allegations prove true, they were subject to treatment we should all condemn.

But I am even more inspired by Marquez and her dissent. Our system of government is reliant on people of principle, particularly those in high office, protecting its bedrock foundations. In her choice to draft this dissent, that is exactly what Marquez did.

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