Some appellate lawyers in Colorado are scratching their heads after a state Supreme Court ruling this week that avoided wading into the debate between LGBTQ protections and free speech rights, but nevertheless produced an equally heated dispute over process, fairness and the court’s adherence to its rules.

On Tuesday, in a 4-3 opinion, the Supreme Court declined to say whether a Christian baker’s refusal to make a gender transition cake for a trans customer was protected by the First Amendment. Instead, the majority in Masterpiece Cakeshop v. Scardina concluded the lawsuit — which made its way through the trial court and Court of Appeals — was filed incorrectly to begin with.

Writing in dissent, Justice Richard L. Gabriel complained the precise justification the majority employed was never raised by either side. He warned the decision violated the “party presentation principle” — the notion that litigants frame the issues and courts resolve the competing interpretations.

“I believe that it is particularly important for a court not to raise and rely on arguments of its own derivation, so as not to open itself to questions about its proper role or neutrality,” Gabriel wrote.

The dissent’s invocation of the party presentation principle was particularly curious in light of who authored the Masterpiece Cakeshop majority opinion, Justice Melissa Hart. Nine months earlier, Hart, writing for a unanimous court, fired a warning shot to the Court of Appeals to not address issues the litigants do not raise.

In the absence of a “clear justification,” she wrote in Johnson Family Law v. Bursek, “the court may not consider the issue.”

“I’m not sure that the Supreme Court’s opinion meets the Bursek standard,” said attorney Damon Davis, referring to the Masterpiece Cakeshop opinion. Because Hart did not address Gabriel’s accusation or the rule she previously laid down, “we are left with the dissent’s explanation which makes it look like the majority misapplied the party presentation rule, and perhaps it did.”

Colorado’s appellate courts are not the only ones wrestling with the principle of party presentation. This January, the U.S. Court of Appeals for the 10th Circuit, based in Denver, opted to hold a rare all-judges hearing of a criminal case despite no request by either party. Two judges criticized the move for violating the party presentation principle and skirting the “norms of our appellate process.”

Gabriel has repeatedly raised the party presentation principle in his past dissents, calling out perceived violations and reiterating that courts should not address issues the parties choose not to raise.

Still, the precise contours of the rule have been fuzzy.

“If they don’t make the arguments, what are we supposed to do when we see it’s an error of law but the defendant didn’t argue it or the (prosecution) didn’t argue it?” asked Court of Appeals Judge David J. Richman during a 2022 appellate conference.

Gabriel responded that a court could ask the parties to submit additional briefs specifically addressing the relevant topic.

“But the issue is one of fairness. For the court to address it on its own without giving anyone a chance to respond — just speaking for myself — I’m concerned about the due process ramifications and the fairness ramifications,” Gabriel said at the time.

In the Masterpiece Cakeshop decision, the defendants broadly maintained the trial court did not have the ability to hear the case. However, the majority rejected their specific argument about why there was no jurisdiction, while endorsing a different interpretation of the law.

Explaining that the court has “an obligation to interpret and apply the law,” Hart wrote that the court’s majority, in relying on its own reading, was “steered in this direction by Masterpiece’s arguments.” Gabriel ridiculed that logic as creating “a substantial loophole in the party presentation principle.”

“This disagreement between the justices in the majority and those in the dissent is nothing new. Judges and justices have long disputed among themselves this and similar questions that come down to a matter of degree,” said appellate attorney Spencer Bailey.

Some lawyers who read the Masterpiece and Bursek decisions suggested the Supreme Court’s majority likely did not see itself as raising a new issue without justification in violation of its own rule. Others suggested the majority acted reasonably by resting on its own reasoning.

“There’s some general force to the notion that courts must independently decide an issue of statutory interpretation, so if Party 1 says the statute means ‘A’ and Party 2 says it means ‘B’ — but both are wrong — the court can say it really means ‘C.’ And I suppose Justice Hart would offer that as her ‘justification’ under her January opinion,” said a Colorado appellate practitioner, speaking on background to avoid commenting on the justices publicly.

“All that said, the majority’s convoluted reasoning here seems a result-oriented effort to avoid getting cross-wise with SCOTUS,” they added, referring to the U.S. Supreme Court’s rejection of the Colorado justices’ decision in a high-profile elections case earlier this year.

Attorney Bradley A. Levin believed there was a plausible argument that the majority in Masterpiece Cakeshop strayed from its own rule, notwithstanding Hart’s insistance that the court had to correctly interpret the law even if the litigants never suggested the specific reading.

“That is always the case; that fact alone would not justify a court sua sponte (on its own) raising and deciding an issue in a manner that was not argued by any of the parties,” he said.

Davis said the Supreme Court’s position on the party presentation principle seems unclear, but broadly requires judges to justify why they are addressing an issue spontaneously or for the parties to be wrong about the “general issue” they bring before the court.

“I imagine the Supreme Court is going to give itself more room to deviate from the party presentation principle than it gives the Court of Appeals. The concern with strict application of the party presentation principle is when both parties are wrong, so the court’s interpretation of the law ends up wrong,” he explained.

On the other hand, Davis cautioned, there is a possibility the Supreme Court may make a mistake, too, if it opts to decide a case without getting the parties’ input on specific reasoning.

“If the Supreme Court gets it wrong, there’s no one to fix it,” he said.