Jon_call's List: Target v. American Fork Stare Decisis

• *1021 3. Stare Decisis

   

  ¶ 45 Under the doctrine of stare decisis, "[t]hose asking us to overturn prior precedent have a substantial burden of persuasion." State v. Menzies, 889 P.2d 393, 398 (Utah 1994). We will not overturn precedent "unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent." Id. at 399 (quoting John Hanna, The Role of Precedent in Judicial Decision, 2 Vill. L.Rev. 367, 367 (1957)). The State has not met its burden.

   

  ¶ 46 In State v. Menzies, we overruled precedent that had been in place for approximately twenty years. Menzies, 889 P.2d at 399. However, we did not do so lightly, and the decision in that case was justified for three reasons that are not applicable here. First, the precedent in Menzies was "not the most weighty of precedents." Id. The Berry rule, however, is based on a constitutional mandate, and on a judicial understanding of it, that has provided substantive protection for the citizens of this state since the earliest days of statehood. Second, the precedent rejected in Menzies was established "with little analysis and without reference to authority." Menzies, 889 P.2d at 399. Berry's analytical model, by contrast, was established only after a thorough analysis of Utah's case law regarding the open courts provision and the case law and history of other states with similar provisions. See Berry, 717 P.2d at 674-81. Third, the precedent overruled in Menzies did "not work very well." Menzies, 889 P.2d at 400. Although the State claims that Berry does not work well, our case law since Berry indicates that it does. The two-part Berry test is a functional method of preserving Article I, section 11's protections while still permitting rational evolution of tort law.

• ¶ 47 The State has not demonstrated that Berry was decided wrongly or that any change in conditions makes the application of Berry unsound. Rather than showing that "more good than harm will come by departing from precedent," Menzies, 889 P.2d at 399, the result of the State's view can only do harm to our constitution and to the delicate balance of process it creates. The purpose behind the open courts provision is to prevent corporate or other private special interests from unduly influencing the legislature for their own self-interest and at the expense of the public good and the rights of the individual. There has been no change in conditions that would make this any less of a possibility than it was at the time our constitution was drafted or when Berry was decided.

   

  ¶ 48 The State's argument in effect would remove from Utah's Declaration of Rights any limitation on legislative power to abolish or drastically restrict tort redress. As the dissenting justices observed in Meech v. Hillhaven West, Inc., 238 Mont. 21, 776 P.2d 488 (1989), such a decision would "clean[se] the scalpel for the legislature to cut away unrestrainedly at the whole field of tort redress. Perhaps worse ..., the Court throws in the sponge as a co-equal in our tripartite state government." Id. at 507. The remedies clause of article I, section 11 was thoughtfully included in Utah's Declaration of Rights to ensure that the legislature would not be free to arbitrarily eliminate common law rights without establishing significant social and policy need or providing reasonable alternatives for the protection and vindication of those rights. Brown, Masich, Berry and their progeny continue to safeguard this principle.

• While the majority has correctly applied the law as set forth in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), I believe that Clover is clearly wrong and constitutes nothing more than judicial legislation. It should be abandoned as precedent.^[1] The inherent risks of skiing statute does not, as Clover and the majority state, categorize inherent risks, nor does it establish a "reasonable care" standard for certain types of inherent risks. To the contrary, it plainly states that "no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing." Utah Code Ann. § 78-27-53 (1992) (emphasis added). Rather than misconstruing the plain language of the inherent risks of skiing statute in order to formulate a judicially prescribed result, this court should apply the plain language of that statute to the facts in this case and leave the possible infirmities of the statute for the legislature to remedy.^[2]
• Although I fully understand the principle of stare decisis and the necessity thereof, it should not be adhered to when the rule established by a case was originally erroneous and more good than harm will come from departing from precedent. State v. Menzies, 235 Utah Adv.Rep. 23, 25 & n. 3 ___ P.2d ___, ___ & n. 3 (March 29, 1994). As Justice Felix Frankfurter aptly noted, "[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable...." Helvering v. Hallock, 309 U.S. 106, 119, 60 S.Ct. 444, 451, 84 L.Ed. 604 (1940). In keeping with this rule, this court has "not hesitated ... to reverse case law when we are firmly convinced that we have erred earlier." Staker v. Ainsworth, 785 P.2d 417, 424 n. 5 (Utah 1990); see, e.g., Menzies, 235 Utah Adv.Rep. at 25; ___ P.2d at ___ State v. Hansen, 734 P.2d 421, 427 (Utah 1986); State v. Tuttle, 713 P.2d 703, 704 (Utah 1985). Clover is just such a case

• Those asking us to overturn prior precedent have a substantial burden of persuasion. See State v. Hansen, 734 P.2d 421, 427 (Utah 1986). This burden is mandated by the doctrine of stare decisis. In State v. Thurman, 846 P.2d 1256 (Utah 1993), we discussed stare decisis in the context of multiple panels of the court of appeals and emphasized the importance of its observance:

   

  399*399 This doctrine, under which the first decision by a court on a particular question of law governs later decisions by the same court, is a cornerstone of the Anglo-American jurisprudence that is crucial to the predictability of the law and the fairness of adjudication.

   

  Id. at 1269.

• In Thurman, we made it clear that the doctrine applies as between different panels of the court of appeals. Id.^[3] Certainly the doctrine also applies to a court of last resort, such as a state supreme court. Nevertheless, we wish to make clear that the doctrine is neither mechanical nor rigid as it relates to courts of last resort. See Staker v. Ainsworth, 785 P.2d 417, 423-24 (Utah 1990); American Fork City v. Crosgrove, 701 P.2d 1069, 1071-75 (Utah 1985).

   

  The general American doctrine as applied to courts of last resort is that a court is not inexorably bound by its own precedents but will follow the rule of law which it has established in earlier cases, unless clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.

   

  John Hanna, The Role of Precedent in Judicial Decision, 2 Vill.L.Rev. 367, 367 (1957); see also Francis v. Southern Pac. R.R., 333 U.S. 445, 471, 68 S.Ct. 611, 623, 92 L.Ed. 798 (1948) (Black, J., dissenting) ("When precedent and precedent alone is all the argument that can be made to support a court-fashioned rule, it is time for the rule's creator to destroy it."). Although we do not do so lightly, we believe that now is the proper time to overrule Crawford. Because we are departing from a prior precedent that has been followed for approximately twenty years, it is incumbent on us to explain why we overrule it. Cf. Hansen, 734 P.2d at 427.
• [3] We note that the doctrine of stare decisis, as it applies to a court of appeals, has two facets. Vertical stare decisis, the first of these two facets, compels a court to follow strictly the decisions rendered by a higher court. See Jaffree v. Board of School Comm'rs, 459 U.S. 1314, 1316, 103 S.Ct. 842, 843, 74 L.Ed.2d 924 (Powell, Circuit Justice 1983); In re Marriage of Thorlin, 155 Ariz. 357, 362, 746 P.2d 929, 934 (Ct.App.1987). Under this mandate, lower courts are obliged to follow the holding of a higher court, as well as any "judicial dicta" that may be announced by the higher court. See Lewis v. Sava, 602 F.Supp. 571, 573 (D.C.N.Y.1984); Fogerty v. State, 187 Cal.App.3d 224, 231 Cal.Rptr. 810, 815 (1986); Ex parte Harrison, 741 S.W.2d 607, 608-09 (Tex. Ct.App.1987). See generally Robert E. Keeton, Venturing To Do Justice: Reforming Private Law 25-38 (1969); 21 C.J.S. Courts § 142, at 169-70 (1990).

1 more annotation...

• On November 21, 2006, plaintiffs and defendants each filed motions for summary judgment; plaintiffs also filed a petition for class certification.^[1] While the district court was considering these motions, the Supreme Court held argument in Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705 (2007). The district court issued an order stating it would wait to rule on plaintiffs' summary judgment motion until after Leegin was decided, but would continue consideration of defendants' motions. Two weeks after the Supreme Court handed down its decision in Leegin, the district court granted summary judgment for defendants on the ground that defendants' contracts with their distributors represented genuine agency relationships that did not support liability under § 1. The court also denied plaintiffs' motion for class certification as moot. Plaintiffs now appeal.