Well, not quite. They didn’t call me out by name. But still… Yikes.
Last month I wrote about In re Arnold, a then-pending case in the Washington Supreme Court involving stare decisis and the state’s intermediate Court of Appeals. I argued that the Supreme Court should stay out of it. Let the Court of Appeals figure out its own rules for stare decisis. Or perhaps the Supreme Court could use the rulemaking process or recommend that the legislature clarify the Court of Appeals’ structure so that stare decisis could work more smoothly.
The Supreme Court did not take my advice. In a unanimous opinion (!) the Court dove right in, holding that a Division of the Court of Appeals should not follow the decisions of other Divisions. I can appreciate the Court’s desire to resolve this problem. But unfortunately, I think the Court’s decision raises more questions than it answers. Here are a few:
What’s the holding? — The Supreme Court’s opinion in In re Arnold didn’t just resolve the stare decisis question. It also (not surprisingly) addressed the case’s substantive question, rejecting Division 3’s interpretation of a state statute. In so doing, the Supreme Court also rejected the prior Division 1 and Division 2 decisions that Division 3 followed in In re Arnold. But since the Supreme Court started by resolving the merits, isn’t the rest of the Court’s opinion just dicta? The Court already resolved the case on the merits. Why bother with the stare decisis stuff?
Interestingly, the Supreme Court implicitly raises this question, albeit from the other side of the issue. In discussing its own review of Court of Appeals decisions, the opinion includes this language: “We recognize when there are conflicts in the Court of Appeals. We resolve them by granting review, not by telling the later panel to adhere to a decision of an earlier panel.”
I don’t disagree with that observation. But what will the Supreme Court do going forward? Will it recognize when a panel of the Court of Appeals relies too much on a prior decision and then tell the later panel not to adhere to the decision of the earlier panel? I can’t imagine the Supreme Court doing that. And if that were a real possibility, why not do it here in In re Arnold? The Court could have simply resolved the stare decisis question and remanded to Division 3 for further proceedings based on new instructions on how to treat the Division 1 and Division 2 precedent. It didn’t do that.
Put a different way: After this decision, would Division 3 do anything differently? The Court of Appeals’ decision in In re Arnold expressed concern for uniformity in the statewide system of sex-offender registration. It seems like Division 3 got what it wanted here. During the time between its decision and the Supreme Court’s decision, the state had a uniform rule. Now that the Supreme Court has reversed, the state has the opposite rule. But the state consistently had a uniform rule. I have to imagine the judges on Division 3–concerned as they were with the due process implications of uneven enforcement of the law–are perfectly happy with this result. If they have the same situation arise again, I wonder if they’d resolve the question any differently.
What About Trial Courts? — During oral argument, the Supreme Court discussed the effect of Court of Appeals stare decisis on the trial courts. As I noted in my original post, trial courts would have an easy time if they only had to follow the Division of the Court of Appeals in which they sat. But appeals don’t always go to the “right” Division. And since the Court of Appeals is a Court of Appeals, trial courts don’t have any reason to favor one panel’s decision over another’s.
True, the Supreme Court didn’t need to resolve the stare decisis question for trial courts. But of course it didn’t need to resolve the stare decisis question for the Court of Appeals either. Will a future case provide the Supreme Court with an opportunity to tell a trial court that it followed the wrong Court of Appeals decision? Will a panel of the Court of Appeals take up the task? We’ll see.
What’s the Difference Between a Panel and a Division? — The Court begins its analysis by walking through various statutory and rule-based reasons that a Division of the Court of Appeals should not follow the decisions of other Divisions. But the Court never addresses the distinction between three-judge panels within the same Division or three-judge panels from a different Division. For example, the Court’s opinion says the following:
When the Court of Appeals was created, the legislature . . . addressed the question of whether divisions of that single court could issue decisions that were in conflict. It assumed that such conflicts would arise.
Opinion at 16 (emphasis added).
But here’s the statutory language the Court quotes in support of that statement:
[C]ases involving substantive issues on which there is a direct conflict among prevailing decisions of panels of the court [of appeals] or between decisions of the supreme court . . . shall be appealed directly to the supreme court.
RCW 2.06.030(e) (emphasis added).
The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.
Who will be the first lawyer to seek Supreme Court review of a Court of Appeals decision because the panel wrongly followed a previous decision from within the same Division?
Bound? Who Said Anything About Being Bound? — The Supreme Court seemed quite concerned that Division 3 considered itself “bound” by the previous Division 1 and Division 2 decisions. Here’s what the Supreme Court wrote:
The Court of Appeals, Division Three, . . . felt bound by prior decisions of the two other divisions of the Court of Appeals. Division Three labeled this deference to a prior out-of-division decision a rule of “horizontal stare decisis.” We reject this rule.
Opinion at 2 (emphasis added). Later, the Supreme Court uses the term “required deference.” Required!
But here’s what Division 3 itself wrote:
Horizontal stare decisis is different and more complex. Under this doctrine a court, such as this one, is not required to follow its own prior decisions.
As I explained in my previous post, Division 3 certainly did not consider itself bound or required to follow the previous decisions. Rather, the Court of Appeals was concerned that departing from the prior decisions might create an unconstitutionally vague and unworkable system of statewide registration based on the specific circumstances of the case.
Division 3’s narrow holding contradicts another of the Supreme Court’s concerns: That any system of inter-Division stare decisis would eliminate the need for Supreme Court review based on a conflict within the Court of Appeals. The Washington Rules of Appellate Procedure provide that the Supreme Court “has a duty to resolve conflicts within the Court of Appeals.” The Supreme Court expressed this concern: “If one division were required to defer to the decisions of another division, there would be no need for such a rule.”
But that’s not right, for at least two reasons. First, the rule proposed by Division 3 did not require one panel to follow all previous Court of Appeals decisions. A strong, vertical-like doctrine of stare decisis would certainly reduce conflicts in the Court of Appeals. But the weak version proposed by Division 3–in which a panel can depart from extra-Division precedent unless faced with serious constitutional concerns–would still create conflicts in normal cases of disagreement. Second, even a super-strict version of stare decisis would lead to conflicts, either because panels intentionally tried to weasel out of prior holdings or unintentionally created irreconcilable lines of cases.
And What About These Other Points that Don’t Fit Within a Simple Question Heading?
Two more things. First, the Supreme Court mentioned the federal system like this:
The United States Circuit Courts of Appeals deal with similar issues of consistency . . . and have generally determined that one panel of a United States Circuit Court of Appeals should not be in conflict with another within the same circuit.
Opinion at 21 (emphasis added).
Note the subject of that sentence. The Courts of Appeals are the ones that deal with the question of stare decisis in their own courts. And they are the ones that determined the applicable rule. The Washington Supreme Court’s own description of federal practice recognizes, implicitly, that federal practice was developed by the intermediate appellate courts themselves, generally without U.S. Supreme Court interference.
Second, the Supreme Court closes with this:
However, our current system of rigorous debate at the intermediate appellate level creates the best structure for the development of Washington common law.
Opinion at 23.
I agree. And this really seems to get to the heart of the Court’s decision. It’s not statutes or court rules or the state constitution doing the work here. The Court, in its supervisory role, has adopted what it views as the “best structure” for the Washington Court of Appeals. I think this probably is the best structure. But since no statute, rule, or provision of the constitution compels this result, I still would have preferred that the structure come from the legislature or the rulemaking process.
By a vote of 9-0, however, the Supreme Court disagreed. Oh well.