The twists and turns of precedent

Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedentbrought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract:

Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will an intermediate court follow rulings of a sister court? What sources can advocates cite? (or: why can advocates cite secondary sources but not unpublished opinions?) Are fewer cases considered to be cases of first impression, since the cumulative body of precedent is so large?

This essay examines each of these questions. It is accessible to beginning students, first wrestling with the questions, but should also interest more experienced researchers.

Before you say to yourself, “Yeah, like I’ve got time to read a lengthy, impenetrable, egghead article,” take it from me, the piece is fairly short (about 13 pages, with about a third of it in the footnotes) and the abstract is correct that the article is “accessible.” For those of you curious about which of Shakespeare’s plays have been cited the most in appellate briefs (not always to good effect), Whisner has done that homework for you and put the results in a table in her article (#1 cited Shakespeare Play: Hamlet).

I especially enjoyed her discussion about prohibitions against the citation of unpublished opinions. (Long-time readers may remember that the rule against citation of unpublished opinions generated a lawsuit against the California Supreme Court a few years ago and that there is one organization very agitated about the rule.) She asks some good questions about the rule. Has technology made the rationale for the rule obsolete? Why is it alright to cite Shakespeare and Dr. Seuss, but not alright to cite unpublished decisions? The paper is well worth a read.

To the Court of Appeal, there is no such thing as a “wrongly decided” Supreme Court case

one version of the ALA Organization Chart

Stare decisis principles and relationships among courts are not this complicated
ALA staff via Compfight

Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case.

Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do?

First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent did (unsuccessfully). Second, a respondent can do its best to distinguish the case from the case on appeal; perhaps it is not as controlling as it appears to be at first blush. But given how concisely the Court of Appeal dealt with the merits, distinguishing Iskanian probably was not an option for the Miranda respondent.

I can tell you one thing that will never work, at least not until the Supreme Court decision has been disapproved by a later Supreme Court decision: arguing to the Court of Appeal that the Supreme Court decision was wrongly decided. Yet, respondent argued that in Miranda, apparently relying on rationale set forth in some federal decisions:

Respondents’ sole argument is that Iskanian was wrongly decided. However, Iskanian is binding on this court, regardless of any contrary holdings by lower federal courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Montano v. The Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214, 1224, fn. 5 [“We recognize that several federal district courts in this state have found PAGA waivers to be enforceable . . . . However, ‘ “[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.” ’ ”].)

It can be awfully difficult for a respondent to concede anything on the appeal. But, if the Court of Appeal is correctly characterizing the respondent’s argument, this “wrongly decided” argument never really stood a chance.

California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review

I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.)

That may change. Yesterday, the Supreme Court posted for comment some proposed changes to this scheme.The upshot is that there would be a 180-degree change in the rule, so that published cases accepted for review by the Supreme Court would remain published, with a notation that the case has been accepted for review.

Where things get interesting is in the related issue of the precedential effect of such cases. If cases on review remain published, should they have the same precedential value they had prior to being accepted for review? That’s one proposal (but it also has a provision that the Supreme Court could explicitly limit the precedential value of the decision. The second proposal is that such decisions would not be binding and could be cited only for persuasive value.

The proposal generated quite a bit of buzz on the Los Angeles County Bar Association Appellate Courts Section listerv yesterday. The “if it ain’t broke, don’t fix it” caucus seemed to win the day.

Of course, not everyone agrees that the current system “ain’t broke.” There is an organization dedicated to advocacy for publication of all Court of Appeal opinions. Several years ago, a law firm even sued the Supreme Court over its publication rules.

The issue of the precedential value of cases accepted for review is of concern beyond the appellate community, of course. Published decisions of the Court of Appeal, regardless of the district in which the decision was rendered, are binding on trial courts statewide. Where there are conflicting appellate court decisions, a trial court is free to choose which it will apply.

Since conflicts among the Court of Appeal often generate review by the Supreme Court, trial courts are forced under the current rules not to rely on the more recent decision and treat the earlier one as binding. Someone on the listserv pointed out yesterday that this is unfair, and I tend to agree. After all, where review is granted because of a conflict between two cases, the Supreme Court is likely to disapprove one or the other of them rather than reconcile them. In other words, since the fate of both cases lies in the balance, why should one have greater precedential value than the other?

If you wish to offer the Supreme Court your comments on the proposal, you must do so by September 25, 2015.

Update: Horrendously embarrassing typo in headline fixed!

The consequences of reluctant unanimity in appellate decisions

Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity is evidence that the lawyer’s assistance wasn’t that valuable.

I think there are broader implications. Skotnicki notes that the chief judge said this practice results from a sense of comity among the judges and the desire to strengthen precedent. I don’t begrudge any judge the desire to strengthen precedent through unanimity — a desire that has been expressed by Chief Justice John Roberts of the United Stated Supreme Court —  but I think that how a panel gets to a unanimous opinion matters a lot. If an initial opinion that splits a panel can be re-drafted in a way that accommodates a dissenter without unduly weakening the central point of the initial majority– a tall order, I’ll grant —  then the resulting unanimity is well-achieved.

However, changing votes based merely on comity and a desire for strengthened precedent are bad, not just for the lawyers, but for the system. Split decisions are significant in at least two common scenarios.

At the federal level, where circuit precedent may only be changed through en banc review, the dissent can have an impact on whether the circuit will rehear the case en banc. Whether en banc review is sought of the split decision itself or of a later unanimous decision compelled by a split-decision precedent, it seems to me that a principled dissent can influence can make the difference as to whether or not en banc review will be granted, and even have an impact on the ultimate decision reached on en banc review.

In California appellate courts , where a panel is free to depart from decisions by other panels, even those in its own district (that may shock some of you non-California lawyers, but it’s true), a well-reasoned dissent may be just what convinces the appellate court that the precedent was wrongly decided.

I cannot imagine that comity and a desire to strengthen precedent are ever the only reasons for a dissenting judge or justice to change his or her vote, in the Eleventh Circuit or anywhere else. Maybe there was more to the chief judge’s comments on that topic?

Make the argument yours, not someone else’s

You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently reaffirmed by the California Supreme Court, and you can see you’ve got your work cut out for you.

That is the uphill climb that appellant faced in FujiFilm Corp. v. Yang, case no. B243770 (2d Dist., Jan. 24, 2014). The Court of Appeal rejects the invitation to apply the federal “transaction” standard and holds that under the California “primary right” standard, there was no splitting of the cause of action, and thus no preclusion.

One can debate the best way to argue for application of the federal standard — if at all — in such circumstances. Perhaps unique underlying facts or the federal-state dichotomy between the two actions would give an opening to argue that the federal standard should be applied in this particular instance. But nothing like that is mentioned in the Court of Appeal’s rather uncharitable assessment of the appellant’s effort (emphasis mine):

Appellant urges that we apply the “transaction” doctrine of federal law, instead of California’s primary rights theory, to find Fuji wrongfully split its cause of action. We need not linger on appellant’s request, however, because she does not cite any California authority applying the transaction doctrine to define a cause of action. Instead of pertinent case law to support her position, her appellant’s brief relies solely on an eight-and-a-half page block quotation from a 15-year-old law review article. But our Supreme Court as recently as three years ago affirmed that the primary rights theory applies in California. [Citation.] We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine. [Citation.]

That’s some quotation!

Was the appellant just trying to tee the case up for review by the California Supreme Court? We’ll see. I’ll update this post if a petition for review is filed.

UPDATE (3/28/2014): The remittitur issued today. No petition for review was filed with the Supreme Court.

The “underground body of law” – the influence of unpublished opinions

There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published.

Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in People v. Moret, case no. A123591 (1st Dist. Dec. 28, 2009. modified on denial of rehearing Jan. 22, 2010), to cite the existence of an “underground body of law” as his principle justification for publication of Moret:

[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Health and Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious.

The cited code section concerns use of medical marijuana. I can’t be the only one who finds it a little ironic that the body of case law on it would be underground.

“There is no exception for Supreme Court cases of ancient vintage.”

That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis.  It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases.  I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available.  Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that.

A smart lawyer, of course, would not rely on age alone.  The lawyer would point to some changed circumstance since the time the case was decided, such as changes in statutes or case law that the older decision relied on.  Nonetheless, I feel a little better having Mehr at my disposal.

Here’s the full paragraph from the case:

Although the California Supreme Court is free to overrule its own prior decisions, the doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. [Citations.]  There is no exception for Supreme Court cases of ancient vintage.

Speaking of cases of ancient vintage, they seem to crop up a lot in the area of stays and supersedeas pending appeal.  This strikes me as an odd place for old cases to dominate, in light of the intervening overhaul of the relevant statutes.

If anyone has an explanation, theory, or even a SWAG** as to why old cases dominate in this area — or who, perhaps, wishes to point out that my factual premise is wrong — please leave a comment on this post. (**SWAG = Scientific Wild-Ass Guess – a term I picked up while studying electrical engineering at the Naval Academy.)

The Tip of the Stare Decisis Iceberg

That’s how Ben Shatz describes his article on stare decisis at the Los Angeles County Bar Association website. It is a fast read and a great introduction to a doctrine that has far more wrinkles in it than most people think. Every lawyer who gets anywhere near a courtroom should read it.

One of the points Ben raises is that there is no lateral stare decisis in the California Court of Appeal. One district is free to depart from a decision from another district, or even from prior decisions from other panels in the same district.

As I pointed out in a recent post, you can take on adverse Court of Appeal precedent no matter how squarely it seems to hold against you. A Court of Appeal is free to depart from a case that is wrongly decided, and might even be hoping for you to give them a good reason to do so.

The Liberty of the Court of Appeal

Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis:

The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.

The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.” (Emphasis added)

Another reminder of the liberty the Court of Appeal has in overturning decisions — or in not following the decision of another district — arrives in the form of In re Pope, case no. C051564 (3d Dist. Jan. 8, 2008), in which the Third District of the Court of Appeal explicitly rejects the holding of a recent case in the First District (emphasis added):

The superior court’s ruling was based on a decision of the Court of Appeal, First Appellate District, Division Two. (In re Phelon (2005) 132 Cal.App.4th 1214 (Phelon).) The superior court was required to follow Phelon. We are not so restrained. In our view, Phelon was wrongly decided.

A Court of Appeal typically will not depart from precedent decided in other districts.  But there is no procedural rule that prevents them from doing so in the appropriate case.  Don’t give up on a case where there is bad Court of Appeal precedent when you can make a good argument that the court should depart from it.

SCOTUS on Stare Decisis

The Blog of Legal Times has a good summary of the discussion of stare decisis in Tuesday’s U. S. Supreme Court opinions in John R. Sand & Gravel Co. v. United States, case no. 06-1164 (Jan. 8, 2008), including what it sees as an unusual alignment of the justices.

The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision.  The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases.

I remember my legal writing professor emphasizing the importance of citing recent precedent.  But sometimes, the only case you have directly on point is quite old.  I’m pretty sure I have cited cases from the 1800s.  John R. Sand & Gravel proves that old — very old — cases can serve as effective precedent.

Supremes Deny Republication of Lockheed Litigation Cases

You might remember my post from early November about the dismissal of Supreme Court review of the Lockheed Litigation Cases.   Review was dismissed because a majority of the justices recused themselves due to conflicts of interest created by their ownership of stock in one or more of the oil company defendants.

The oil companies, who prevailed in the Court of Appeal, sought to have the Court of Appeal opinion republished.  Wednesday, the three non-recused Supremes and one designated Court of Appeal Justice voted 4-0 to deny republication.  Those justices that had recused themselves from review likewise recused themselves from the republication decision.

I remain baffled by Chief Justice George’s rationale for the dismissal.  According to the Daily Journal article I cited in my previous post, he claims that a decision by a panel composed primarily of designated justices fron the Court of Appeal would not carry the same precedential value as a case decided by the Supremes themelves.  Though Supreme Court cases have been decided in the past by panels composed entirely of designated justices from the Court of Appeal, the Daily Journal article noted that Chief Justice George distinguished those earlier occasions as being based on “necessity” rather than conflicts of interest.

I am not sure I agree with the decision not to republish the case.  If the issue was so important that it warranted review, why not have precedent out there?  Perhaps the Supremes were unwilling to return to the state of affairs prior to the grant of review because the original grant was not tainted by conflicts.  (According to this article at Cal Law, apparently there was no conflict until Chevron, in which three of the justices own stock, merged with defendant Unocal a few months after review was granted.) 

Cal Law’s Legal Pad blog provides an update.

A Group Passionate about Changes to Publication/Citation Rules

I had occasion to do some research recently into the fight for changes in the rules for publication and the California ban on citation of unpublished California opinions (Cal. Rules of Court, rule 8.1115) and ran across The Committee for the Rule of Law. According to its mission statement, it “seeks to revive full publication of all decisions of the United States Court of Appeals and the Court of Appeal of California in official reports and to eliminate all rules of court prohibiting the citation of approximately 90% of all decisions of our appellate courts to any court for any purpose.”

The name of the group and the passion with which it argues may strike you as somewhat “over the top,” but if you are interested in researching the arguments in favor of such reforms, its web site is a good place to start. You will find links to a lot of materials regarding the debate in California, including links to past legislative initiatives, dozens of articles in law reviews and the press, and historical developments in the adoption of Rule 32.1 of the Federal Rules of Appellate Procedure, which, effective January 1, 2007, authorizes citation to unpublished opinions rendered on or after that date.

UPDATE (11/20/07): I corrected the effective date for Rule 32.1 of the Federal Rules of Appellate Procedure.

Life Estates and Proposition 13

Since Proposition 13 (passed by initiative in 1978) changed the property tax system in California from one based on current assessed value to one based on assessed value at the time of acquisition, the issue of whether a change in title is a change in ownership for purposes of Proposition 13 haunts every transaction, as it can mean a huge increase in property taxes. In Steinhart v. County of Los Angeles, case no. B190957 (2d Dist. Sept. 28, 2007), the Court of Appeal faced the issue of “whether Steinhart’s acquisition of a life estate in real property upon the death of her sister constituted a change of ownership so as to trigger a reassessment” under Proposition 13.

The court’s answer: no. Under one of Proposition 13’s implementing statutes, Revenue and Taxation Code section 60, a “change in ownership” requires the transfer of a present interest of a value that “is substantially equal to the value of the fee interest.” The court reasons:

a life estate is an estate of questionable value because subject to complete defeasance at an unknown time. [Citation.] Therefore, by definition, the value of a life estate is not “substantially equal to the value of the fee interest” for purposes of a statutory change in ownership. [Citation.]

The County contended that the Supreme Court language cited by the court was dictum, but the court reminds us that:

even if properly characterized as dictum, statements of our Supreme Court should be considered “persuasive” [citation] and “its dicta command our serious respect. [Citations.]” [Citation.] When, as here, “the Supreme Court has conducted a thorough analysis of the issues and such analysis reflects compelling logic, its dictum should be followed. [Citation.]” [Citation.]

Stare Decisis and the “Wrongly Decided” Controlling Case

Yesterday, I posted about a mild barb at the trial court delivered by the Court of Appeal in Cuccia v. Superior Court, case no. B197278 (July 16, 2007). This post concerns the summary the Court of Appeal gave for how a California trial court should handle controlling precedent that it feels was wrongly decided.

A trial court has no choice in such a situation but to follow the case. But “the trial court should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.”

The court stresses that this is not a hollow remedy, because the Court of Appeal can be influenced by a persuasive analysis by the trial court. It does take time, though.