Jeff Lewis 
Welcome everyone.

Tim Kowal 
supposed to say you're Jeff Lewis and then I say I'm Tim Kowal. Both of us are certified appellate specialists and as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always if you find this podcast helpful please recommend it to a colleague.

Jeff Lewis 
Yeah, give us a rating on Apple podcasts or wherever you listen to our podcast.

Tim Kowal 
Okay, so many people when they're browsing through a possible new podcast they might listen to, they might think that the California Appellate Podcast is just for legal nerds. And today we're going to prove that hunch true, because we're gonna be talking about the all important concept to us appellate nerds, horizontal stare decisis, and why California doesn't have horizontal stare decisis. And

The preeminent scholar on that topic is our guest today Mike Shipley. Michael Shipley has been a practicing litigator in California for over 20 years. He's argued in one, two important cases before the California Supreme Court, including the one that we have all heard of, Jamison versus Desta, which established the right of indigent litigants to obtain the free services of a court reporter, very near and dear to Jeff's heart and my heart as appellate.

practitioners because if there's no court reporter, there's no work for us. And ⁓ he's been the author for more than a decade of the excellent California Civil Procedure Blog, 111 North Hill Street, a blog of California civil procedure and topical for today's discussion. He is the author of Horizontal stare Decises in the California Courts of Appeal, Law, History and Reform.

It was published last summer in the University of San Francisco Law Review. Michael, thank you for joining us. Thanks for being here.

Mike Shipley 
Good afternoon. Thanks for having me.

Tim Kowal 
And I also forgot to give you my thank you for being the source of so many of the cases and topics that we often discuss here on the podcast. Your blog, 111 North Hill Street, is a frequent source of ideas for discussion on this podcast. And one of my favorite posts that comes to mind most frequently, you always have delightfully titled, ⁓

Names for your blog post and this one was titled I don't believe you is not evidence and use that frequently in arguing that just because yes the the Trier effect has lots of leeway in deciding, you know What counts as evidence and how much weight to give evidence but just because you don't believe someone doesn't you know doesn't constitute a credit on the other Party's side of the ledger. So I always like that. That was like the aeon case. I believe

Jeff Lewis 
Hehehehehe

Mike Shipley 
You'd be surprised about how many people think that they can avoid summary judgment by just not believing the haffi.

Tim Kowal 
Yeah, yeah, it's an important nuance. So I love that one and I cite that one, that case frequently. whenever I, now I remember the name of the case, the Aeon something, but if I need the rest of the case, I know I can always search for, I don't believe you is not evidence and your blog post will come up. But today we're gonna talk about the ⁓ horizontal stare decisis rule in California's no horizontal stare decisis rule.

It's a bedrock principle, a horizontal stare decisis. Let's start with stare decisis, a bedrock principle of common law procedure or just the nature of common law is that court decisions are law only to the extent that they're followed by other courts. And yet, California appellate courts don't follow each other. Hence, it is said that there is no horizontal stare decisis in California.

The interesting thing about from reading your article is that wasn't always the rule in California to happen sometime after the early 1940s. And also I learned from reading your article that California is one of the largest judicial systems. mean, it's the largest in the Western world. It may be one of the largest in the world or it certainly is one of the largest in the world. It's got six appellate districts, multiple divisions.

and add on to that multiple rotating three justice panels. It creates many potential conflicts of important areas of law. And yet the California Supreme Court decides only a couple dozen civil cases every year. So surely the rule of no horizontal stare decisis must have been the product of much institutional deliberation, many white papers flowing back and forth, commissions being impaneled, scholarly debates.

Enemies became friends, friends became enemies, maybe PR junkets and ultimately democratic settlement of the issue. But from reading your article, that's not quite how it happened. ⁓ Mike, would you tell us a little bit, how did we get to the no horizontal stare decisis rule in California?

Mike Shipley 
No. Sure. So let me step back a little bit. this all started, there was a case called Cohen versus Spear Court that was decided like two years ago. And there was a footnote in that case that said that the panel was disapproving of prior decisions of the same district of the court. And I thought, I've never heard of that. I never thought that the courts would, the court of appeal could overrule itself.

And so I started kind of scratching into that and digging down and realized after, you know, going all the way back to the founding of the state and the creation of the Court of Appeal in the early 20th century, that it was effectively just an accident. Like, no one decided. There's not even an opinion that actually decides it. It just sort of, there's...

declaratory statements of the law that go back again to like 1905 through the 30s that kind of go both ways. And no, there's no analysis. No one's saying, well, this is how we think the judicial system should be constructed. And this is the best rule. It just sort of accreted. And there was a division. then the...

Tim Kowal 
Was it almost by way of dicta? Did anyone think that they were making this rule?

Mike Shipley 
No,

no, think it's largely by dicta. And then what happened is the first edition of Witkin's California Civil Procedure came out and the entry in that on the function of stare decisis in the Court of Appeal says effectively the rule that is the rule now, that Court of Appeal does not bind any other Court of Appeal in the state and cites

some cases that vaguely state this dicta on that side of the rule. And then it just sort of goes off in the running from there. And people start citing the wit contraeus itself, which becomes kind of fait accompli. And then, you know, slowly it develops. And then finally, in like the early 2000s, there's a case that says there is no stare, horizontal stare, precisely in the California Court of Appeal. And to make it all the more amusing, that case is a

a case involving a divorce attorney's effort to get his attorney fees and the plaintiff argued that it was a waste of time for the other party to have an appellate lawyer and the court says, well, having an appellate lawyer is really important because it's confusing and there is no horizontal. So even that the ultimately first super clear statement of the rule is itself in debt.

Tim Kowal 
Yeah. this is, I mean, to what extent can you call this Bernie's rule if it really comes from Wittgen's treatise kind of interpolating from all these arguable dicta decisions that talk about the supposed rule? And then I think it finally gets adopted by a Supreme Court decision. Do I remember that right?

Mike Shipley 
So there's not even an on-point majority opinion that says it because it's never an issue that the California Supreme Court really needs to deal with, right? Because once it's before the California Supreme Court, the concerns about horizontal stare decisis when the court of appeal are kind of not their problem anymore. There's a concurrence that discusses it in a case. I don't remember who the judge is.

It might have been Justice Chin. But there's a concurrence that, again, on a kind of tangential point to the actual main point of the appeal, it's discussed. And actually, currently, in that Cohen case that I mentioned, review was granted in that case, and the issue that that case is on is about whether some obscure provision in the government code creates a private right of action. But the California.

appellate lawyers actually filed amicus brief that cited my article and some other stuff that said, hey, Supreme Court, you should actually decide this issue because it's kind of an important structural concern in the state court system. So maybe they'll get there when that comes out, probably in a couple of months.

Tim Kowal
Well, now that you mention it, it's been a while since I read the auto equity decision, but that seems like it would be the on point case because that's the decision that talks about when there is a split of authority among the intermediate courts of appeal in California, the superior court judges can choose from either side of the split. So at least there, the Supreme Court was talking directly about the fact that there do exist splits of authority among the intermediate courts of appeal.

But I take it it doesn't go beyond that and talk about the origins or ratify the no horizontal stare decisis rule, even in the auto equity sales decision.

Mike Shipley
That's right.

The rule's kind of in there by negative implication, right? Because auto equity is a rule of vertical heart, so it's tardy sizes, right? The question was whether the appellate division of some superior court was bound by a court of appeal decision from somewhere in the state. And the court said, well, the court of appeal is binding on every trial court. And if there's a division in the court of appeal, then the judge has to kind of just decide what the

he or she thinks the Supreme Court might do and to pick the better rule. But it doesn't actually come out. And I guess by acknowledging that there's divisions of the Court of Appeal that are not, or divisions within the Court of Appeal, and those decisions are not binding upon the trial courts in any particular order or way or geography, it's sort of suggesting that there's no horizontal stare decisis But it doesn't really come out the same.

Tim Kowal
Well, we launch right into the no horizontal stare decisis rule. Let's back up a little bit for our listeners who are not at like nerd level 10 ⁓ and explain basically what is stare decisis. And maybe I was curious to get your take. Is this a rule of jurisdiction or rule of prudence or rule of comity? What is the nature of this rule? But let's back up. I'd be curious to get your definition of stare decisis.

Mike Shipley
Yeah.

So

stare decisis in general is the concept of courts within their rule declaring power, declaring rules that are then binding on other future courts. And that has two aspects. It has a vertical aspect and a horizontal aspect. So the vertical aspect is not that hard to understand. The Supreme Court

Tim Kowal
why it matters.

Mike Shipley
on an issue of the state Supreme Court on an issue of state law binds all courts in the states. And as a matter of fact, the federal courts have held that the Supreme Court binds all the federal courts when deciding issues of state law, right? There was a Viking River, there was a case about Paga a couple of years ago where the US Supreme Court said, we think that the rule is this about the way a Paga employment action is divisible.

and who has standing to bring that. And then two years later, the California Supreme Court granted a review and said, nope, that's not the rule in California. So the California Supreme Court does not have to follow the United States Supreme Court on questions of state law. It does on questions of federal law. So aside from vertical horizontal, which is just a hierarchical way that courts follow other courts within a judicial system, horizontal stare decisis is the way that courts at the same level

Tim Kowal
Mm-hmm.

Mike Shipley
follow each other. and you know, there's, there's, and there's different aspects of it. at an ultimate, like a Supreme court level, there is horizontal stare decisis right? We remember cases like Casey talking about, well, is Roe precedent and, and, that, that's kind of a policy judgment more than anything else about a court deciding how much it wants to be bound to its prior decisions versus how much it wants to avoid what it views as error.

Right? How can it decide that it was wrong and how much stickiness does that have? And that varies over time. It's not always well-fledged out within judicial systems, but it's largely a policy concern. And then, so at a lower level, right, in a judicial system with an intermediate court of appeal, which is true in like 35 states or something, you have to decide how those courts

when answering questions that haven't yet been decided by the Supreme Court, what are they bound by? Are they bound by each other? Are they bound by the same courts within wherever their geography is? Are they bound not at all by courts at their same level? So people are probably familiar with the federal system where you have a Ninth Circuit Court of Appeal and the Ninth Circuit Court of Appeal when it decides an issue is binding on every

district court within the Ninth Circuit until the Supreme Court says otherwise.

Mike Shipley
in addition to the Ninth Circuit being binding on all of the district courts within the Ninth Circuit's geography, the Ninth Circuit has its own internal rule of horizontal stare decisis that's set out most prominently in an en banc opinion called Miller versus Gammie. And in that case, the court explains that the first Ninth Circuit three-judge panel to decide a rule binds every other three-judge panel in Ninth Circuit.

So if, and if that's wrong, then the only way to fix it is either to go on bunk and have the whole court reverse. Or if that rule is substantially undermined by subsequent Supreme Court decisions, a three judge panel can say, well, effectively, even though our old rule was this, the Supreme Court has effectively vacated that rule and we can go a different direction.

Tim Kowal
Let me ask you about that. This gets to a question I've long wanted to know the answer to. I know that I think this is true, that every federal circuit has a horizontal stare decisis rule. Do each of, and you mentioned that in the Ninth Circuit, it was this Miller versus Gammie case that originated the horizontal stare decisis rule in the Ninth Circuit. So did every circuit's horizontal stare decisis rule emerge independently?

through its own case law.

Mike Shipley
Largely,

and then I haven't done a survey across all the circuits. Most of them, to my knowledge, most of them have a rule that's similar to the United Circuit rule where the first panel binds. There's some differences because of the way on-bond procedure works in different circuits. So like I know the seventh circuit has a rule where the judges can sort of flag in a prior opinion that seems to be wrong and then

there's a vote and if the vote goes the right way, that panel can then depart from the rule. But it does appear that there's not a Supreme Court, US Supreme Court decision that says that there's, so it is something that's sort of percolated up in the various 13 different federal circuits.

Tim Kowal
And so that would mean that at any time, as far as you know, is it true that all of the circuits basically follow the same model? They all have horizontal stare decisis.

Mike Shipley
I believe that's the case here.

Tim Kowal
And if it's true that they all basically got there independently, any one of them at any time could have an en banc decision that overturns that and decides to follow the California no-horizontal stare decisis model instead.

Mike Shipley
I think theoretically that is possible. It's not, stare decisis is interesting because it's not clear what it comes from, where it comes from. I mean, it has some historical origins. There's a concurrence in a opinion a couple of years ago where Justice Kavanaugh suggests that it's inherent in Article III. Some of it is just sort of the providence of having adopted the English common law system of adjudication.

Tim Kowal
Yeah.

Mike Shipley
because was, stare decisis was a practice that developed, you know, in the English courts, hundreds and hundreds of years. I mean, it's mentioned in Blackstone, so it's old, but as to like, it's kind of interesting because it's like a meta rule, right? It's a rule about how you decide the rule. And theoretically, you could change that rule. you know, I think, frankly, Congress could change the rule if it wanted to.

Tim Kowal
huh.

Hmm. Well, you mentioned you did include a reference to the to Kavanaugh's concurrence. It was in the Rahimi case. ⁓ And you said a recent concurrence by Judge Justice Kavanaugh in US versus Rahimi suggested that quote, the judicial power established in Article three incorporates the principle of stare decisis, both vertical and horizontal. And if that's true, that if

Mike Shipley
Right.

Tim Kowal
The idea of stare decisis comes from the Article 3 definition of the court's power as the judicial power. Does that, if that's true, then does that make stare decisis a jurisdictional concept or not necessarily?

Mike Shipley
I

I doubt it's jurisdictional in the sense that you can be put out of court, in terms of it affecting the court's power to hear a case. Jurisdiction means all sorts of different things, right? Jurisdiction can mean that core jurisdictional question, or if you go back in time, you find uses of jurisdiction to mean all sorts of things. If you read old mandamus cases in California, the court seems to just not have the jurisdiction to be wrong, which is sort of the fiction that developed in California.

to writ of mandate, they missed cases at the court of appeal level to reverse the trial court, right? And even though the writ of mandate historically only went to jurisdiction, that was sort of how they developed it. But I don't...

I don't think it's jurisdictional as much as it's structural, which is related, right? So, you know, Justice Kavanaugh says that it's sort of inherent in the judicial power of the United States being in Article III, but of course, Congress has the power to set up all the courts other than the Supreme Court. So presumably Congress could have set up two or six or seven or however many layers of appellate review it wanted.

Tim Kowal
You met.

Mm-hmm.

Mike Shipley
And it has the power to structure that because it's granted that authority in the Constitution. So it seems like the stare decisis rule there floats between that, right? Between Congress's or the legislature's power to create and structure the court and the Constitution's adoption of basically a common law judicial system.

Tim Kowal
Yeah. Yeah, we had, ⁓ well, not, not to linger too much longer on that subject, but, Jeff and I had a ⁓ related conversation a couple of months back when we were talking about a standing, interesting standing question, how standing was different in federal court than in, than in California state court, because, the, the case or controversy language, does not appear in the California constitution the way it does in the federal constitution. So

That's the origin, that case or controversy language is the hook for federal standing. And obviously in California, we do have the requirement of there being standing, it is philosophically or structurally different than it is in the federal ⁓ doctrinal discussion. Yeah. Yeah. I...

Mike Shipley
That's right. It's, it's prudential or statutory generally, right? Like, like, you know, if you think about,

you know, it comes up a lot in rid of mandate cases, right? Where you don't necessarily have to have article three type standing in order to, in order to bring a writ, but you do have to have, there's like a zone of interest kind of analysis where you have to have some.

skin in the ga- it's not like the old 1700 where you could just come off off the street and say, hey, I want to sue because there's a law being violated and that bothers me so now.

Tim Kowal
Yeah. Yeah, but it makes it interesting that in the federal system, you can go back to the text and start there, but in the California system, withstanding, it's a little bit different. It's, I don't know, maybe in my cynical takeaway is that standing is whatever we, the Supreme Court says it is, or whatever we, the legislature says it is. And maybe that's...

But maybe it's a similarly freewheeling analysis when it comes to stare decisis, but it's a prudential rule. I think you also cited another footnote, citing Schmeier versus Supreme Court. It's a 2000 decision. And your parenthetical is that it notes that in California, stare decisis is, quote, principle of judicial policy, not a rule of constitutional or statutory dimension.

Mike Shipley
Right, so in that case is about whether you could have unpublished decisions. and the theory, the plaintiff's theory there, which followed a case that was in the 10th Circuit before that, was basically that it violates the idea of common law courts to have an appellate court render a decision that doesn't bind anyone in the future. Right, because presumably that has some limiting.

purpose, right? That if the court is stating a rule that not only binds the facts of this case, but binds similar cases in the future, the judiciary is somewhat of constrained from doing whatever it wants instead of just like saying, well, this is a one-time rule and it's an unpublished decision and never talk about this ever again. Right? So, man, that was rejected in that decision. And so in getting there, they said, you know, stare decisis is not.

Jeff Lewis
Hahaha

Mike Shipley
constitutional or a statutory command but just sort of a prudential policy type rule that developed over time.

Tim Kowal
Yeah, yeah, well that's that's been one of my hobby horses. You know, unpublished decisions irk me somewhat because it seems like an exception from the rule that, well, we're going to put the project of developing the common law on pause for this case and we're just going to kind of do a one-off here. So don't side to it, just forget about this one, just forget about this little guy, you know, this we're just taking care of this one, sui generis. Then when we when we put the publication button back on,

Mike Shipley
I think so.

Tim Kowal
Publication setting back on then you can start listening to us again and I Was involved in a case that in which there is a Well, not a split there's there's a vacuum in the in the appellate courts But there's several trial courts that have gone different ways on a particular issue. And so the litigants are submitting their Request for judicial notice to put all of you know, their superior court decisions in the record and the other side's putting their

Superior court decisions on the other side of the question in the record. you know, me, a appellate attorney is just kind of sitting here bemused that, ⁓ you know, yeah, you can't do that if it's a court of appeal decision going one way or the other. Those are just completely out of bounds. But superior court decisions or your blog posts or someone else's Twitter posts or blue sky posts, those are all fair game. Yeah, this podcast could be part of the judicial record.

Jeff Lewis
Or Tim's podcast.

Mike Shipley
in the pathway.

Tim Kowal
But

absolutely no way, no how under rule 8.1115, can you ever put a non-published appellate decision in the record.

Mike Shipley
Yeah, it's definitely awkward. If you ever do anti-SLAP research, you realize how terrible it would be if everything was published because you just have to wait through thousands and thousands and thousands of cases.

Mike Shipley
of the first appellate cases I worked on, which I think was even before I passed the bar, I worked at this small firm in San Francisco, and it had like an interesting, was for an interesting exception to 11th Amendment immunity involving school districts. And we had a very like detailed and well thought out, you know, strategy to get the Ninth Circuit to extend this rule, except the facts of the case, the parties were terrible. Like the plaintiff was just a bad, bad person.

And wouldn't you know it, the other side larded up the appellate record with all the facts showing that the plaintiff was a bad, bad person. And two weeks later, we got a Membispo that said, no. And that's always kind of the burn about unpublished decisions, right? Like on one side, if everything is published, your legal research is endless. On the other side, you're missing out potentially on good decisions and you're failing to constrain the judiciary in deciding cases on the facts and law.

Tim Kowal
this whole sub discussion was an effort to reduce the appellate nerdery level down from a 10 to a five, but I think we shot right back up to 11 there. Yeah. And that was ⁓ largely my fault. Let's talk about the practical states. Why should practitioners in California care if there's no horizontal stare decisis? And I thought maybe we would cover what are the pros of our

Mike Shipley
We're back up to 12.

Tim Kowal
system, even though we kind of more or less stumbled into this no horizontal stare decisis rule. What are the pros and what are the cons?

Mike Shipley
So, mean, the pros are that the law develops, right? If you had a rule like exists in the Ninth Circuit in the Court of Appeal, the first Court of Appeal decision to decide something would decide it for the whole state, and then no one could go the other way. And if there are arguments the other way, guess courts could make them and ask the Supreme Court to grant review. But there's no mechanism for the law to develop in

you know, as it applies to certain sets of facts and the ability of courts to disagree with each other and develop the law, right? On the other hand, it makes the law uncertain. I mean, if, if, you know, if you read the auto equity case, you're like, okay, there's, there's a court of appeal case that says a and a court of appeal case that says B and literally, literally what the Supreme court is telling the trial court to do is decide which is the right case. So there you're.

you know, you have no certainty, right? Like you don't even have certainty until you go to the court of appeal, because when that decision gets appealed, that court of appeal panel will not be bound by either of the prior rules. So it leads to, you know, it leads to a lot of uncertainty, especially it happens, I think in California it happens a lot, not where there are necessarily purposive splits in authority, but when there are these like little issues that are kind of,

sides or minor issues in the case that aren't a central issue in appeal. And so no one's paying attention and thoroughly researching them and making sure that everything is fully consistent. So you wind up with like inadvertently inconsistent rules. They tend to be about like obscure procedure stuff that the Supreme Court's not like super, you know, gung-ho to grant review because two different Court of Appeal panels have missed, you know, differently read some

judgment collection statute or whatever. And it just makes things, it makes litigation hard to predict, which is, you know, something that people tend to complain about in California about.

Tim Kowal
Something that occurred to me from reading your article is that in the federal system, as we talked about there, it also allows for differences of opinion to percolate. know, Ninth Circuit could have a different view of things than the Fifth District. But at least in the Ninth Circuit, there is one rule. And in the Fifth Circuit, there is one rule. In the nation, multiple rules exist. It might exist a different rule in every circuit.

But if you're in that circuit, you know what the rule is. But in California, that's not the case, because ⁓ you can be in the second district, and the second district has held one rule, and the fourth district has held another rule. But if you're in the second district, can you rest assured that the second district rule is going to apply to your case? No, because a different panel of that same district can rule a different way. The same panel.

of the same division of the same district could decide, you know what, I think maybe this case just merits a different rule. They're not bound by anything. So that's a different kind of uncertainty that exists in the federal system.

Mike Shipley
Yeah, no, and I mean, it can be exacerbated too by the fact that, you know, not every appellant has, you know, a genius appellate lawyer who's put on research every single case and find every case. And so sometimes when you have these cases that are, you know, if you read the briefs, appear pretty clear cut, unless the court does its own research and figures out that there's decisions that are being missed, sometimes you wind up with a

division that's inadvertent. And then, I mean, and that's sort of compounded by the publication practice in a lot of the court appeal, where an opinion will come out and it will be initially unpublished, right? The court decides, this isn't an issue worth publishing on. And then one of the parties sends in a letter and says, hey, court, you should publish this.

Right? This is important to me because of X, Y, and Z. know, repeat, but again, that comes up a lot in insurance companies or whatever. And then the court says, okay, we'll publish, but no one sits down and says, okay, before we publish, let's make sure that this decision that was previously unpublished is consistent with, or at least purposefully inconsistent with all the other precedent that exists. Right? So you just wind up with, you wind up with things being orthogonal by accident.

Tim Kowal
Okay, that's gonna wrap up part one of our conversation with Michael Shipley on horizontal stare decisis in the California Courts of Appeal. We covered how the rule emerged almost entirely by accident, ⁓ is how it emerged, and how it compares to the federal model and the ⁓ costs and practicalities faced by practitioners in trial courts ⁓ because of the no horizontal stare decisis rule. In part two, which will continue in the next episode, we will continue with Mike on forum shopping.

The anti-SLAP mixed cause of action split as a case study in prolonged legal uncertainty and Mike's proposal for a discretionary transfer mechanism that would let the California Supreme Court designate a court of appeal panel to issue a statewide binding decision without consuming the Supreme Court's full docket. So don't miss that. If you have suggestions for future episodes, please email us at info@calpodcast.com.