Tim Kowal
Welcome everyone. I'm Tim Kowal, certified appellate specialist, and I'm joined by co-host Jeff Lewis, also certified appellate specialist. Together we try to bring trial and appellate attorneys some legal news and perspectives they can actually use in their practice. If you find this podcast helpful, consider recommending it to a colleague. Our recent conversation with Michael Shipley about horizontal stare decisis was so fun that we split it up into two episodes because it was too long for a single episode. We wouldn't subject our listeners to a full hour or over an hour's worth of appellate nerdery. So this is part two, where Mike turns to the practical damage that the rule may inflict or arguably inflicts on trial judges and litigants, or not damage so much, but just the pros and cons, and some of the possible costs and ways that Michael proposes ameliorating those potential problems. For example, the anti-slap.

Mixed Cause of Action split that persisted for over a decade. And then we turned to Mike's reform proposal that he lays out in his University of San Francisco Law Review article on the No Horizontal Stare Decisis Rule in California. Please check back to our first episode if you haven't listened to it yet. Otherwise, welcome back, Mike, and we'll continue with our conversation.

Tim Kowal
Mike, do you think that there is a different kind of forum shopping problem? Or do you think that there is any pronounced forum shopping problem that's inherent in a no horizontal stare decisis? Where if you know that, well, the second district has held my way on this case. And I know the second district isn't bound to follow its ruling, but it'll probably stick with what it held before.

So maybe I should try to get my case heard in that district. Do you think that's a problem? Or do you think that the

Mike Shipley 
I think it's less of a problem than in federal court, right? In federal court, like, you know, there's a reason why all the injunction cases that are coming out nowadays are not in the Fifth Circuit. And there's a reason that all of the injunction cases during the prior presidential administration were, right? Because obviously, there's a predictableness in having a horizontal stare decisis rule like that.

Tim Kowal 
Mm-hmm.

Mike Shipley
Whereas here, you know, I've filed a lot of lawsuits in my days, and I have never sat down and said, well, maybe we should figure out a way to engineer this so we can file in San Francisco because the first district has a good rule on this. Even though we could theoretically file in Santa Clara County, and six districts have, like, I've never even had that conversation.

Tim Kowal
I haven't either. Jeff, have you? ever, ⁓ you know.

Jeff Lewis
No. Never had the conversation, never had the thought.

Tim Kowal 
Frankly, guess I haven't either. Maybe anecdotally or maybe democratically, among a poll of the three of us, it's unanimous that we haven't had that problem. It seems theoretical at least, but it doesn't seem practical. There was an amusing anecdote from your article just about the auto equity rule that we've talked about in the absence of horizontal stare decisis. It is left to trial judges to decide. And here's how one trial judge put it. And it came out in the record in this Farmers Insurance Exchange versus Superior Court case from 2013. And here's the quote, apparently from the trial record where the judge commented, you know, it's an amusing rule really for a trial court to consider that when there's an argument that there's a conflict between the Court of Appeal and the Court of Appeal.

It's some lonesome judge somewhere who's supposed to say, yes, I am appointed to the Supreme Court for temporary purposes here, and I will make the call on this. And ⁓ that's the auto equity rule, according to that superior court judge.

Mike Shipley
I mean, look, if I'm the Superior Court Judge, that's a kind of annoying rule, right? Because I can follow a Court of Appeal case on all fours and still get reversed. Because I haven't had a conversation with any Superior Court Judge about sort of how they feel about the court, it's very different from California. But I can imagine it's...

Jeff Lewis
Yeah.

Tim Kowal 
Mm-hmm.

Mike Shipley 
It can be kind of annoying. I you know, especially

Jeff Lewis 
Well, and more than annoying, you know, I imagine most judges don't want to be reversed or want to be viewed as partisan or making law that they're just simply calling balls and strikes. And when these judges are given the choice of picking this case or that case to follow, then it's like they have the finger on the scale, and judges don't want to be viewed that way.

Mike Shipley 
That's right. think it, it, it, Court judges like the, like the fiction that like, no, I have to do this. I'm sorry. I, this is not my preference, but this is what the law is. And I'm, I'm just, you know, the umpire.

Tim Kowal 
Well, bringing that back to the forum shopping analysis, we had talked about none of us could have really imagined a practical scenario where anyone would forum shop to a particular appellate jurisdiction. But what about when there is a conflict, there is an open conflict, and you know that, you know, Judge Smith in Department five has ruled our way on this issue. Wouldn't it be great if we can get our issue, our case, transferred over to Judge Smith?

That way, we know how this issue is going to come out, assuming he's going to come out the same way as before. Any thoughts whether there is any forum shopping at that level?

Mike Shipley 
I think that probably does happen, particularly with repeat litigants. I imagine if you talk to a DA or a public defender, they'll have a good sense of when there are divisions in the law, which judges are better for them. And I think it happens in, I mean, there's at least a sense, I think, with practitioners about what

like the sort of predilections of the various superior courts, especially ones that have complex departments. think where people are repeatedly litigants in front of a handful of judges, people get to know sort of...

the feeling of the way the court might handle the situation and try to steer things that are more advantageous to them. I it's, I mean, like I practice mostly in LA. It is very hard to perform shop in LA because there are 600 judges. But, you know, again, once you're into one of these like complex departments, LA, you know, there are...

handful of judges, there's like five in Orange County, there's two or three in Alameda. Like that's where, once you get that population down, think definitely there's some opportunity for strategic gamesmanship there.

Tim Kowal 
I wonder if that happened during the, you mentioned in your article about the, in the anti-slap space, there was about a 10-year period, I think maybe it was 13 years, but over a decade, there persisted a very important split or unanswered question about mixed causes of action that was finally decided in Bural v. Schnitt. And Jeff, I'd be curious to know if you have had experience during that time dealing with the uncertainty of the law there and-

Jeff Lewis 
Right?

Tim Kowal 
In anti-SLAPP law, Jeff has a cottage industry in that space alone. There were probably, I think you mentioned, Mike, I don't know if you're exaggerating, or I would believe it, thousands of cases coming out in that space. And that seems like it could have presented a very possible situation for forum shopping, or certainly, whether there's forum shopping or not, just a very frustrating situation for litigants.

Jeff Lewis 
Well, say, I think the Brawl decision or the uncertainty before Brawl preceded my practicing in this area. So I didn't really live through that. But I'll say this today. There's uncertainty regarding when an anti-slap motion is granted as to fewer than all the cause of action or fewer than all the parties. What do you do with the rest of the case? And there are cases that say it should be stayed or should not be stated. But it's kind of a gray, murky area.

And so I can imagine, similar to the brawl situation, we practitioners can't advise our clients about what is going to happen next? Will the judge stay this case because it's so murky.

Mike Shipley
You know, because any slap decisions are immediately appealable, they just generate so much more appellate judicial work product than almost anything else. So there's just like lots and lots and lots and lots of cases, which a large volume of cases will, I think, inevitably lead to a greater variety.

How do they get resolved? That one, I think the Supreme Court granted a review of the issue in 2004, and then the case got mooted out for a bunch of confusing reasons, and then they didn't grant again until Baral, which was 12 or 13 years later.

Tim Kowal
Is that what happened? Okay, so it wasn't like they, you know, it had been 10 years, and the court thought, no, let's give it another couple of years.

It was just an unfortunate procedural situation, like mootness, that wound up stalling it out.

Let's move on to Mike's prescription for reform. Well, tell us about your idea, Mike, for how we can reform the no horizontal stare decisis rule.

Mike Shipley 
Sure, so the one thing we haven't talked about is an en banc procedure. So in most of the jurisdictions that have a stronger form of horizontal stare decisis, there's the ability for the court at that level to take something en banc. So the Ninth Circuit has a practice where it's an unusual one here, where 11 judges can rehear a case and decide that issue. And then that rule binds the whole circuit regardless of whatever the prior.

Three-judge panels decided. All the other federal circuits have a procedure where the whole court sits together. The Ninth Circuit doesn't just because it's so large and unwieldy. California has never had an en banc process at the court of appeals level. As a matter of fact, the state constitution says that every court of appeal panel has to sit as a three-judge court. So there's not really any

Short of a constitutional amendment, don't think there's a way for the court of appeals or even the state legislature to create a full en banc process. But what I was thinking of i,s wouldn't it...

Tim Kowal 
Because three justices, no more and no less.

Mike Shipley 
Correct. And I think it even specifies that two need to concur in the judgment in order for it to resolve the appeal.

Tim Kowal 
Yeah, so if you had a non-bonk of 15 justices, the other justices, 4 through 15, would be surplusage and their votes couldn't count under the Constitution. Yeah.

Mike Shipley 
or unconstitutional, but I was, you know, thinking of these sorts of examples of where there are persistent splits on like,

Typically, very procedural issues that are hard to get the Supreme Court's attention on, like discovery, right? Discovery, if you practice in Superior Court in California, you're always super, super frustrated because there's not enough case law in discovery, right? And that there are a billion pages of statutes that are super specific, and then no real answers to them. And then sometimes when there are answers, there are answers that go this way.

So, to get a court, to get the Supreme Court to grant review on, like, what is the rule if you ask a question outside the scope of a PMQ notice and a PMQ deposition? Like what happens there, right? And that comes up in my practice like monthly, but it's never been resolved. So the thought I had was, what if we, what,

Mike Shipley 
What if there were an ability to create something in between the Court of Appeal and the Supreme Court that could resolve those splits on what are basically like persistent but low-stakes divisions within the Court of Appeal? I looked at the state constitution and the rules of court, and California has historically always had this power where the Supreme Court can transfer cases.

So the Supreme Court has a constitutional power to transfer a case to itself. That's pending in the Court of Appeal. The Supreme Court has the power to re-transfer a case that it already has. For instance, you'll see a lot of time where there's like a lead case, and there's a bunch of trailing cases, the main opinion will come out and then the Supreme Court will transfer a case back to the origin and say, you know, this is transferred back to the second district for consideration along with the opinion we just issued.

And then we discuss, so you have a transfer of power. You have, we discussed that the case law appears to say that the power to govern, sorry to say thi,s is a prudential consideration within the court system itself. So the Supreme Court would have that power. And then the also the power to assign judges to an appellate panel is also something that's within the Supreme Court's power.

Tim Kowal
Okay, yeah, got it.

Mike Shipley
If you know, so if you know, two of district two only has two justices because everybody's sick, the chief justice nominates someone else to fill that spot. And that's true of the Supreme Court as well. So the structure that I thought of was what you could have is effectively the ability of the Supreme Court to transfer a case, whether it's on a petition or on its own volition, to say,

Okay, there's a split of authority. We grant review in this cas,e and we transfer it back to one of the districts of the Court of Appeal. And we, as a Supreme Court, we are anointing that panel with the power to set the rule of decision for statewide so that that court will now have the power to disapprove of or not follow and bind the law as to prior court of appeals decisions on a nation.

And it's a little unusual because obviously you don't have full, know, typically the rationale of non-bond because you have the whole court. So the whole court's deciding for the whole court. And here you'd have, you know, an interim rule where three judges would be binding the court statewide. But of course, that panel would still be subject to the Supreme Court's review. So if that panel gets it right in the views of you know, the justices, then

Mike Shipley 
That could be the rule. And if they get it wrong, then they still have the opportunity to grant review again. I didn't actually address whether they could grant review and transfer it back to someone else to say, here's the mulligan, try again. But I think it's an interesting way. And I think it's something that the state should try, at least, because I think it could resolve a lot of the uncertainty problems that happen at the Superior Court level when you have these sorts of...

Mike Shipley 
divisions amongst the Court of Appeal, again, typically on obscure or procedural issues that are just not important enough for the Supreme Court

Tim Kowal
I thought this was a really interesting idea. It's like a discretionary mini-en bunc procedure. So it's discretionary in the Supreme Court's discretion, using its transfer authority. So the modification would be different from just a grant and transfer. would be basically like a grant and transfer. Okay, two questions. Could the transfer come with instructions, meaning, directions, or suggestions? kind of like a palm notice. It's like, we're thinking about reversing this, but we're gonna transfer it back to you to give you one more shot to get it right.

Mike Shipley
I don't see why not. I mean, I think there currently are transfers that happen like that, right? Where, particularly if there's a relatively new Supreme Court decision that came out after briefing, for instance, sometimes you'll see a grant overview and then a transfer back that says, you know, please reconsider your, the Pellet Court could reconsider its decision based on, you know, Smith versus Jones, which we decided last week. So I don't see why not. Typically, you know, I don't think the Supreme Court ordains a decision as much as a Paulinotus, as like a court for Paulinotus, but I don't see why it would be constitutionally or statutorily prevented from doing that if it wanted to.

Tim Kowal 
Okay. And then the other procedural question relating to the transfer is when the Supreme Court transfers a case, typically, it just transfers it back to the same division and district court of appeal. Could the, but could the Supreme Court transfer it to, I think you've been talking about, you know, is it possible to create a different panel or constitute a kind of special panel? Like if it's a water rights issue and the Supreme Court thinks, you know what, this is a very important statewide issue. And maybe we convene a special panel with a justice from maybe the Central Valley, the Fifth District, and maybe from Sacramento, and from the LA, the Second District, each with a background in water rights. So we kind of have representation of the different major water interests of the state. And each of these justices has a special background in water law. And so this is kind of like an all-star panel of the appellate of the Court of Appeal.

Mike Shipley 
I don't see why it couldn't do that. It seems unlikely that that would happen very often, just because that, like all of a sudden, creates more work in terms of, like, then the Supreme Court would have to know, like, well, who are the justices that have subject matter expertise in this area? Like that, like sort of the rationale of what I was proposing is that it basically takes the work off of the Supreme Court, right?

So the Supreme Court gets a petition for review, says, hey, look at this petition for review. Yeah, there's a split of authority, but is this something that we're going to want to spend a year and all our time, as we have a 200-page death penalty opinion we need to finish? So this is something that we think the law should be fixed, but we don't think it's worth our time. So the idea that the court would like.

To expect the court to invest a lot of resources in figuring out who staffs these panels is, is probably a little bit unlikely. I proposed, I think in a footnote in the article, doing it like they do, like they assign justice to the Supreme Court when there's a vacancy, which I believe is by alphabetical order of everyone with at least one year of seniority.

So you basically have, effectively, like an ad hoc en banc panel for that case. And whether, you know, that could sit within one of the districts just for administrative purposes because there's not going to be any place to like store the record and all that stuff if you have like, again, the rationale would be was to find a way to do this with minimal changes to the rule within existing constitutional structures and with the minimum amount of additional work for the state judiciary.

Tim Kowal 
Got it. The other, the surprising and interesting element of your proposal is that the transfer would include a, guess, a proviso or some provision to the effect that the panel's decision on the issue will be precedential. So it would become an exception to the no horizontal rule.

Mike Shipley 
Yes.

That's right. And I think the Supreme Court just has the inherent authority to do that.

Tim Kowal 
Especially since it was never directly ordered ⁓ ever anyway.

Mike Shipley 
Right.

Right. Right. I mean, they could, you know, they could dig up Bernard Wittgen or whatever, but...

Tim Kowal
Does the Supreme Court have the authority to overrule Whitkin? That's an issue that has not yet been before the court. And I think you had mentioned in the article that you had suggested a judicial council, that the judicial council issue a rule to this effect. And it raised a question in my mind, is the Judicial Council rule necessary to carry this out, or merely advisable or preferable?

Mike Shipley
So I don't think a judicial council rule is strictly necessary. I think the Supreme Court could do it within existing structures. I do think that it would be helpful for the judicial council to have a rule on the issue just because there are going to be some procedural aspects, know, how do you ask? Can you ask for this? When do you ask for it? How do you ask for it?

You know, what happens when someone makes a request? None of those things obviously are in the know; developing them as a common law set of rules would be kind of difficult and uncertain, and would add more uncertainty. think I've actually drafted a rulemaking proposal on it that I haven't had time to, like, sort of, you know, run by people before I like go to the, there's a, you know, there's a

In Article 10 of the rules of court, there's a procedure that permits rulemaking petitions to the judicial council. So I put that together. If anyone's curious, you can find me, and I'll be happy to send you a copy. But I think it would be just helpful in terms of, again, like knowing, having a set procedure about when to make one of these requests. Can you make it before judgment? the...

Can the court of appeal make it on its own? Do the litigants have to make it? Can this Supreme Court make it on its own? Do you make this in a petition for review or is it a separate filing? Like all of these things, just as a matter of good practice, I think you want them to be uniform. And the other thing is, it's relatively easy for the judicial council to make rules, right? It has a, it's like a notice and comment sort of, you know, they publish it, and then people comment, and then they.

They can pass the rule on their own. don't have to go to the legislature. They don't have to go to the people, like you would if you wanted to change the constitution. So, because most of the things that I would envision being in the rule are basically just procedural. Like I don't, I don't see why you would want to do it at any other level.

Tim Kowal
Yeah, and because this is discretionary anyway, it doesn't fundamentally overhaul civil procedure in the state. It would just come up maybe every now and then. It would probably be written about by civil procedure commentators like yourself and maybe talked about on this podcast. I don't know. I think I like it. I think I'd be a vote in favor. if you send me ⁓ the proposal, I'd be happy to write a letter in support.

Mike Shipley 
Will do. Will do.

Tim Kowal
We'll put it in the show notes. What about you, Jeff?

Jeff Lewis
Yeah, for sure. Anything that gets cases moving faster or more cases decided, procedural issues that the Supreme Court wouldn't find policy worthy, but they're still important to practitioners and judges. Yeah, I'm all for it. No downside.

Tim Kowal 
Yeah. Okay. Well, I think we're just about a Jeff's hard stop, you know, to keep this podcast ad-free, know, Jeff and I have to run and do some billing occasionally. Mike, do you have any other final thoughts to add before we wrap up?

Mike Shipley 
I would encourage people to read the article. I would encourage people to think about ways to make practice in the California state courts more efficient, more predictable, more fair. Those are things that I care about a lot. I think about a lot. And yeah, I mean, I think it's just something that particularly practitioners in California State Courts should think a little bit about it and think of it as something they want to support because it's something that I think could be done at a relatively low cost and a high benefit.

Tim Kowal 
I tend to agree. I think it's a great idea. It's a very provocative and informative, not intentionally provocative. It's a very interesting history of how we got to the rule. It almost came out of nowhere. I wrote in the margins of mine that it's Bernie's rule.  That's the origin. But horizontal stare decisis in the courts of appeal by Michael Shipley. Look it up. We'll put the link to it in the show notes. But that's going to wrap up this episode. If you have suggestions for future episodes, topics, and guests, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis 
See you next time.

Mike Shipley 
Thank you guys, this was great.

Tim Kowal 
Thanks again, Mike.