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[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions.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 Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts.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.
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 engineering.)
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.
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.
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.
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.
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.
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.]
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.
