The Bar Speaks

Dear Editor:

When I clerked for Judge Harold Lowenstein, Missouri Court of Appeals, Western District, appeals by and large turned on whether the law and precedent were applied properly. On rare occasions, the Court would be urged to disregard precedent from the Eastern or Southern Districts. Never did an attorney have the chutzpah to insist that, as a jurisdictional matter, the Court had no choice but to follow such precedent. In “Missouri’s One and Only Court of Appeals” [November-December 2008], Ryan Westhoff makes that very argument. The argument is deeply flawed.

Westhoff gets off on the wrong foot by conflating the “jurisdictional powers of the intermediate appellate courts” with “the development of precedential authority” in Missouri. Horizontal stare decisis – the doctrine that a court should follow its own precedent – is a rule of decision, not a delimitation of power. That a court gets the law wrong by ignoring or disregarding its own precedent does not mean that it lack the power to do so, but rather that it exercised its power wrongfully. So even if, say, the Western District should be bound by Eastern or Southern District precedent, it certainly has the power, though not the right (under a strong version of stare decisis), to deviate from that precedent.

Westhoff’s precedent argument is also self-imploding. If each district of the Missouri Court of Appeals is (jurisdictionally) bound by prior precedent from other districts, then each district’s holding on the scope of horizontal stare decisis binds later districts. Well, the Western, Eastern, and Southern Districts all agree that they are not bound by other-district precedent. In fact, every district has, at one time or another, rejected other-district precedent. (Plus, as Westhoff notes, a 1967 case holds that each district is not bound by the prior precedent from other districts.) Ergo, under a strong version of horizontal stare decisis, the version embraced by Westhoff, no district is bound by the prior precedent of a different district.

Westhoff places great importance – too much importance – on the change effected by the 1970 amendment to the Missouri constitution replacing three separate courts of appeals (Kansas City, St. Louis, Springfield) with “the” Missouri Court of Appeals. But nothing prevents a single court from allowing districts thereof to adopt divergent precedent. That’s exactly what is allowed and happens with some regularity in the circuits of the federal courts of appeals and probably in every multi-district state intermediate appellate court. The choice of the word “the” just can’t bear the weight Westhoff puts on it.

Nor does Westhoff’s “originalist” argument fill the gap in his textualist argument. Notably, Westhoff cites no evidence of any divergent precedent creating problems that could have precipitated the 1970 amendment. And, as Westhoff notes, as early as 1967, there was case law adopting the nonbinding view of district-level precedent. Yes, there is some language from a law review article supporting his position: “With this unified court structure all within one single and simplified system of judicial authority, it will for the first time be possible to weld the courts of Missouri into a flexible, integrated organization wherein each court complements and supplements the others and they all work together as one entity.” But (a) this vague language does not even mention the precedential scope of district-court decisions and (b) it comes from a law review article, pretty tepid “originalist” support.

Westhoff notes that Judge Blackmar, before becoming Chief Justice of the Missouri Supreme Court, argued that one of the “functions of the appellate system is that of developing and harmonizing the law of the state.” But allowing for transfer when there is a decisional split allows for such harmonizing while at the same time allowing legal issues to percolate, and be fully developed, in the lower courts. And while Judge Blackmar advocated a constitutional provision authorizing transfer of appellate judges between districts, that provision was never adopted. Further, Westhoff is just assuming (probably falsely, see analysis below) that forbidding district-level splits will help develop and harmonize the law of the state. It should also be remembered that though Judge Blackmar was a great judge, he was sometimes in dissent. It is unclear whether his views reflected his brethren on the Court, let alone the ratifiers of the 1970 amendment, which is what is most important.

Westhoff acknowledges that Missouri Supreme Court Rule 83.03 authorizes transfer (i.e., discretionary review by the Supreme Court) in cases of a decisional split between districts of the Missouri Court of Appeals. But, he argues, neither Rule 83.03 nor any other rule mandates transfer to the Missouri Supreme Court.

The lack of mandatory transfer might matter, though, only if the Missouri Supreme Court had a duty to correct lower-court errors. Then the lack of mandatory transfer would imply that an apparent decisional meant either that the first decision still bound all courts (the second district not having the power to disregard prior precedent) or that the second decision overturned the first decision and thus bound the Missouri Court of Appeals as a whole (and lower courts). In short, there would be no actual split to resolve.

This underlying, but unelaborated, premise of Westhoff’s argument suffers from two problems. (1) The Missouri Supreme Court, like the U.S. Supreme Court, has no obligation to correct lower-court errors. It has long since abandoned that role, and nothing in the Missouri Constitution (or Missouri Supreme Court Rules) compels it to be such a court. See Mo. Const. art. V, § 10. Practitioners know that a transfer application that seeks transfer solely on the ground that the Court of Appeals got the law wrong or misapplied the law will be promptly denied. (2) Authorizing but not mandating transfer where there is a decisional split strongly implies that the Missouri Supreme Court believes that these decisions have the force of law in their respective geographic territories. Otherwise, why bother taking on the second of the conflicting decisions?

Westhoff acknowledges that Missouri Supreme Court Operating Rule 22.01 requires en banc review when a district panel decision conflicts with the decision of another district court. Under the Missouri Constitution, the decisions of the Missouri Supreme Court bind the Missouri Supreme Court. Well, Missouri Supreme Court precedent holds that Rules like Rule 22.01, being procedural, bind the lower courts (and trump inconsistent statutory authority). So a binding procedural rule presupposes that inter-district conflicts can exist. If Westhoff’s reading of the Missouri constitution were correct, why wouldn’t Rule 22.01 just announce that the supposedly conflict-creating decision is invalid? (By the way, that, as Westhoff notes, the Southern District has not adopted a local rule to implement Rule 22.01 is irrelevant: The Southern District does not have to adopt a local rule to comply with or be bound by a Missouri Supreme Court rule.)

Perhaps in recognition of the weakness of his “jurisdictional” argument, Westhoff shifts gears and proposes his binding view of district-level precedent on policy grounds of “consistency.” Consistency, though, is not the only value worth protecting. (“A foolish consistency is the hobgoblin of little minds.”) Accuracy is important, too. And there are two reasons why allowing one district decision to bind other district courts would increase the incidence of inaccuracy.

First of all, district court decisions are almost all issued by three-judge panels. Why should three judges (or two, if one judge dissented), based on a single adversary presentation (with or without oral argument), decide once and for all (absent en banc review, which is rare) what the law will be across Missouri, when the other 28 judges of the Missouri Court of Appeals might very well disagree? Moreover, if the goal is to avoid the shock of having contradictory law in different territories of Missouri, Westhoff’s view of district-level precedent might very well undermine that goal. Suppose the first district of the Missouri Court of Appeals to handle an issue botches the job. Now only the Missouri Supreme Court will be able to correct that error. So the law could be X for the state as a whole, but then, once the Missouri Supreme Court corrects that error (which may take many years to do), the law for the state as a whole will shift to not X. Minimizing the territorial scope of district-level precedent minimizes that kind of harm.

Moreover, it is a good idea – an idea embraced by the U.S. Supreme Court – to allow percolation of issues in the lower courts before ultimately resolving the issues. Individuals generally do not know the law, let alone follow the slip opinions from the Missouri Court of Appeals; they just follow their intuitions, as guided by morality. And while there are some businesses that operate in multiple districts of the Missouri Court of Appeals, decisional splits are (1) rare and (2) rarely will affect them, and (3) such businesses usually can afford wise counsel to advise them about the probability that one district will disagree with another. Moreover, a district could, given the existence of district-level precedent with which it disagreed, make its decision purely prospective, thereby mitigating the harm to those rare businesses and individuals who relied on the prior district-level decision of another court.

Ironically, given the broad nature of arguments Westhoff makes, he omits one of the strongest arguments for his position. Section 7 of article 5 of Missouri constitution provides: “Each division of the supreme court or of the court of appeals shall be composed of not less than three judges . . . A majority of a division shall constitute a quorum thereof, and all orders, judgments, and decrees of a division, as to causes and matters pending before it, shall have the force and effect of those of the court.” Assuming, as seems proper, that a district and a division of the court are the same, a district court decision is decision of the Missouri Court of Appeals as a whole. And “a division of the court cannot be said to be inferior to the court. The judgment of a division has the same force and effect as the judgment of the court. Neither the subject-matter of the suit, the amount in dispute, nor the question involved, distinguishes the jurisdiction of the court from that of a division. . . . The divisions are not therefore inferior courts[.]” State v. Duestrow, 39 S.W. 266, 268 (Mo. 1897) (en banc). That means that a Southern District decision is a decision of the Missouri Court of Appeals. Can the Western District then conclude that it is going to ignore precedent of the Missouri Court of Appeals, merely because it originated from the Southern District? No. Given stare decisis, overruling such precedent can be done only when there are very good reasons for doing so (e.g., the precedent is unworkable, has been undermined by the overturning of precedent it was based on, etc.).

Maybe this argument, plus any arguments that can be salvaged from Westhoff’s article, will one day persuade the judges on the Missouri Court of Appeals. I doubt it. For twenty plus years, the tradition and understanding of judges and attorneys alike has been to the contrary. Nor is there a great ill that Westhoff’s position would cure; the contrary seems to be the case. Only time will tell.

Ron Ribaudo
Lake St. Louis