Horizontal stare decisis

Horizontal stare decisis is the topic of this blog post. The term stare decisis derives from the Latin phrase stare decisis et non quieta movere, meaning to adhere to precedent and not unsettle what is established. See In re Osborne, 76 F. 3d 306, 309 (9th Cir. 1996).  Horizontal stare decisis essentially means the effect of decisions by courts at the same level.

The doctrine of stare decisis is usually one of the first concepts taught in law schools and is also taught in some paralegal schools as well as at least a basic understanding of the doctrine is essential for anyone conducting legal research.

Horizontal stare decisis is somewhat different from vertical stare decisis. For instance, in the federal system, an opinion from one circuit court of appeals may be persuasive precedent but is not binding on other courts of appeals. See Hart v. Massanari, 266 F. 3d 1155, 1172-73 (9th Cir. 2001). This allows the circuits to reach contrary decisions suitable for decision by the Supreme Court.

However within the Ninth Circuit for example, horizontal stare decisis operates to bind subsequent panels. Thus, the first panel of Ninth Circuit judges to publish an opinion on an issue binds not only district courts within the circuit but also subsequent Ninth Circuit panels. For the Ninth Circuit to overrule its own precedent, it must issue an en banc decision. See Miranda B. v. Kitzhaber, 328 F. 3d 1181, 1185 (9th Cir. 2003) that case stated that a panel must follow prior panel decisions unless a Supreme Court decision, an en banc decision, or subsequent legislation undermines its precedential value.

However in California the situation is different in that by contrast there is no horizontal stare decisis between appellate panels of the California Court of Appeal. See Marriage of Shaban (2001) 88 Cal. App. 4th 398, 409. So one appellate panel is not bound by the decision of another.

And when there are two published decisions that are in conflict, the superior court “can and must make a choice between the conflicting decisions.”  See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 456.

The California Supreme Court has stated that, there is only one California Court of Appeal, albeit administratively divided into districts and sometimes subdivided into divisions. See Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal. 2d 450, 455.

Every superior court must follow any published decision from any district and any division of any court of appeal. See Cuccia v. Superior Court, (2007) 153 Cal. App. 4th 347, 353-54 that case stated that stare decisis requires a superior court to follow a published court of appeal decision even if the trial judge believes the appellate decision was wrongly decided.

There is essentially no horizontal stare decisis in California. Thus panels of the California Court of Appeal are not bound by any decisions of prior panels, even within the same district. Thus, any particular district or division of the court of appeal may disagree with a decision by any other district or division.  This means that while the U.S. Supreme Court regulates circuit-splits from the 13 federal circuits, the California Supreme Court oversees potential splits from what are essentially 19 separate courts of appeal considering each of the six districts plus the divisions within those districts as independent courts.

In this situation, the trial court is free to pick which of the decisions to follow. See Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

However in actual practice some superior court judges may view this freedom as more theoretical than real. A California Court of Appeal has even stated in a published decision that“a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” See McCallum v. McCallum, (1987) 190 Cal. App. 3d 308, 315.

Because of the fact that there is no horizontal stare decisis in California, and because geography has no bearing on the precedential power of a court of appeal decision, a superior court may face the prospect of simultaneously being bound to follow conflicting court of appeal decisions. In this situation, the trial court is free to pick which of the decisions to follow. Auto Equity Sales, Inc., supra, 57 Cal. 2d at 456 (“where there is more than one appellate court decision, and such appellate decisions are in conflict,” the superior court “can and must make a choice between the conflicting decisions”).

Some superior court judges may view this freedom as more theoretical than real, however. In practice, “a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.” McCallum v. McCallum, 190 Cal. App. 3d 308, 315 (1987).

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The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

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