Eric J. Magnuson and Nicole S. Frank
The Daily Record Newswire
Stare decisis. We all learned about it in our first year of law school. The American Heritage New Dictionary of Cultural Literacy, Third Edition, defines and explains it: “A Latin phrase that literally means ‘to stand on the decisions.’ It expresses the common law doctrine that court decisions should be guided by precedent.”
But the venerable doctrine has been taking a bit of a shellacking lately. Chief Justice John Roberts was questioned about it extensively during his confirmation hearings and appeared to be a staunch defender of the principle. Then he issued a concurrence in Citizens United, saying, “[f]idelity to precedent — the policy of stare decisis — is vital to the proper exercise of the judicial function. … At the same time, stare decisis is neither an ‘inexorable command,’ nor a ‘mechanical formula of adherence to the latest decision,’ especially in constitutional cases.” His apparent retreat from the his confirmation comments set off a veritable firestorm of controversy and commentary, spawning a number of thoughtful (and not so thoughtful) articles analyzing both his comments, and the concept of stare decisis in general. Citizens United v. Federal Election Commission, 558 U.S. 310, 377, 130 S. Ct. 876, 920 (2010) (Roberts, C.J., concurring) (internal citations omitted).
Stare decisis evolved as a way for courts to bolster the correctness of their decisions — if a prior judge had considered a similar case and reached a particular decision, then that prior decision was a pretty good reason to reach the same decision in the next case with similar facts and issues. The justification grew into a rule, and then a controlling principle, with courts justifying their decisions not on the grounds that they were right, but on the ground that the court was “bound to follow precedent.”
Stare decisis comes in different flavors. When a trial court is considering an issue that has been clearly addressed by an appellate court in the same jurisdiction, “vertical stare decisis” comes into play. No one really quarrels with the principle that a district court judge in Minnesota has to follow the decisions of the Minnesota Supreme Court. The judge can say she or he thinks the decision is wrong, but must follow the law as laid out by the Supreme Court.
But it’s a different kettle of fish when a district court is presented with a decision not from a superior court, but from a sister court of equal stature. Then the concept of “horizontal stare decisis” comes into play. See Curt A. Levey & Kenneth A. Klukowski, Take Care Now: Stare Decisis and the President’s Duty to Defend Acts of Congress, 37 Harv. J. of L. & Pub. Pol. 377, 397 (Spring 2014). The concept of “horizontal stare decisis” got a workout recently in the 8th Circuit Court of Appeals, with a result that may be surprising to some — see discussion below of Reid v. BCBSM, Inc.
Federal district courts, unlike circuit courts, have flexibility in how much deference they give to other district court opinions within the same district. This flexibility creates different approaches to the deferential weight given to district court opinions across, or even within, circuits. Compare Starbuck v. City & County of S.F., 556 F.2d 450, 457 n.13 (9th Cir. 1977) (noting that stare decisis does not compel one district court to follow another district court opinion), with Rojas-Gutierrez v. Hoy, 161 F. Supp. 448, 451 (D. Cal. 1958) (“Unless a judge can say that he thinks a decision of a colleague is on the face of it patently erroneous, he should follow it.”). Applying stare decisis to district court opinions advances predictability, fairness, and efficiency. On the other hand, limiting the precedential impact of district court opinions frees district court judges to decide each case without regard to rigid consistency, and to rely on the persuasiveness of past decisions in a new context.
The doctrine of horizontal stare decisis is not static. Just as courts are placing less emphasis on whether or not an appellate opinion is published, over time courts are also revising their views on the extent to which district court opinions are precedential. Decades ago, 8th Circuit jurisprudence viewed district court opinions as stare decisis and recognized a policy justification for requiring district court judges to exercise caution before ruling inconsistently with prior decisions in the district. Johns v. Redeker, 406 F.2d 878, 879 (8th Cir. 1969) (citing Rhodes v. Meyer, 334 F.2d 709, 717–718 (8th Cir. 1964)).
“We agree with plaintiffs’ contention that a considerable degree of flexibility exists in the application of the doctrine of stare decisis to prior decisions of the district court before which a case is pending. The general policy is not to lightly overrule a prior decision of the court. In Rhodes v. Meyer, 8th Cir., 334 F.2d 709, 716-718, we affirmed the district court’s application of the doctrine of stare decisis to a former decision of the trial court. See Am. Jur. 2d, Courts § 186-87. Of course an obvious error need not be perpetuated by strict adherence to a court’s earlier decisions.”
Enter Reid. In May, the 8th Circuit articulated a narrowed view that district court opinions have only collateral estoppel, res judicata, and law of the case effects, without the precedential impact of stare decisis. Reid v. BCBSM, Inc., No. 14-2083, 2015 U.S. App. LEXIS 8805, at *6 n.2 (8th Cir. May 28, 2015) (published) (per curiam) (declining to reverse the district court’s order denying a request for vacatur and remanding with instructions for the district court to explain its decision).
In Reid, the Court of Appeals reviewed whether the district court erred in refusing to grant vacatur of an order that granted in part a motion to dismiss. Id. at *1–2. The dispute surrounded appellee Tracy Reid’s health insurance coverage and BCBSM’s 2013 policy change to exclude previously covered treatment for behavioral therapy for Reid’s son. Id. Reid sought injunctive relief to enjoin BCBSM’s exclusion of the therapy. Id. The district court granted in part and denied in part BCBSM’s motion to dismiss under Fed. R. Civ. P. 12(b)(6), allowing Reid’s claims under the Minnesota Human Rights Act and the Americans with Disabilities Act to go forward. Id. The parties agreed that the case or controversy became moot after Reid moved out-of-state and consequently lost her benefits with BCBSM, but disagreed as to whether the district court should vacate its Rule 12(b)(6) ruling. Id. at *2–3. The district court denied BCBSM’s motion to dismiss on mootness grounds to the extent it requested vacatur. Id. at *5–6.
On appeal, BCBSM raised concerns of the ruling’s precedential impact as stare decisis for potential future claims. See id. at *6 n.2. In addressing this concern, the Court of Appeals deviated from earlier 8th Circuit precedent in favor of stare decisis, explaining:
“We note one of Blue Cross’s suggestions is that ‘[a]s long as [the Rule 12(b)(6) ruling] stands unvacated, other parties can potentially cite it against Blue Cross as stare decisis.’ Appellant Br. 8 (emphasis removed). However, the district court’s Rule 12(b)(6) ruling cannot be used as stare decisis because ‘[a] district court decision binds no judge in any other case, save to the extent that doctrines of preclusion (not stare decisis) apply.’ Gould v. Bowyer, 11 F.3d 82, 84 (7th Cir. 1993); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 547 F.3d 109, 112 & n.4 (2d Cir. 2008) (‘District court decisions, unlike the decisions of States’ highest courts and federal courts of appeals, are not precedential in the technical sense: they have collateral estoppel, res judicata, and “law of the case” effects, but create no rule of law binding on other courts.’ (footnotes omitted)).”
Id. The Court of Appeals cited decisions from the 7th and 2nd Circuits rather than to prior 8th Circuit precedent in Redeker and Rhodes.
For students of the law, this decision raises far more questions than it answers. If district court opinions have no precedential impact save collateral estoppel, res judicata, and law of the case, where does that leave litigants desiring to estimate the likelihood of success or the advantages of arguing against such a decision? How might this recent change (or split) in 8th Circuit jurisprudence impact requests for vacatur? From another angle, what was the motivation for the 8th Circuit to take what appears to be a sharp turn? Finally, will other circuits follow this move away from a general policy that, absent binding authority from higher courts to the contrary, judges in the same jurisdiction should not overrule decisions of the same court applied to similar facts?
In the past, the principle of relative obscurity may have made these questions less significant. After all, decisions of trial court judges were not widely available to others, particularly in state courts.
But as the Internet makes available nearly everyone’s public thought, the citation of unreported decisions of lower courts as persuasive authority is burgeoning. As the rules regarding horizontal stare decisis shift, those same trial court judges will need to decide for themselves where the stare decisis line is, and when to defer to a peer’s earlier opinion.
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Eric J. Magnuson is a partner at Robins Kaplan LLP and served as Chief Justice of the Minnesota Supreme Court from 2008 to 2010. He has more than 35 years of experience practicing law and he focuses his practice almost exclusively in appellate courts. Nicole S. Frank is an associate attorney at in the Business Litigation Department at Robins Kaplan LLP in Minneapolis. She practices in trial and appellate courts.
