Do precedents take precedence? Stare decisis and Oregon constitutionalism.

Author:Landau, Jack L.
Position:Chief judge Lawrence H. Cooke Eighth Annual State Constitutional Commentary Symposium

There is often unavoidable tension between state constitutionalism and stare decisis. Recognition of the principle that state constitutional provisions have independent legal significance frequently runs counter to a significant body of case law decided under the assumption that parallel provisions of the state and federal constitutions have the same meaning. (1) Strict adherence to stare decisis would preclude a court from departing from such "lockstep" adherence to federal constitutional analysis. (2) At the same time, it would saddle the courts with precedents that are often demonstrably at odds with the language and intended meaning of the state constitution.

The virtues of stare decisis are well known. (3) Adherence to precedent promotes stability and predictability in the law. (4) It ensures that similarly situated people will be treated similarly.

But it should not be forgotten that stare decisis is judge-made policy. Adherence to precedents is not constitutionally required (except, perhaps, indirectly to the extent that capricious failure to adhere to precedents can run afoul of constitutional requirements of equal treatment or due process). (5) And strict adherence to the principle is not costless.

In a sense, strict adherence to stare decisis, at least in constitutional cases, can itself be unconstitutional. (6) Inflexible commitment to a prior constitutional decision that is demonstrably incorrect, for example, exalts a non-constitutional, judicially created policy of consistency over the constitution--properly construed--itself.

In my view, unbending adherence to stare decisis in state constitutional decision-making is unwise and untenable. (7) Sometimes, earlier cases were ill-considered or downright wrongly decided. The costs of adherence to such cases, in terms of the credibility of the courts and the legitimacy of their decisions, outweighs the benefits of blind adherence to them as a matter of precedent. Think about it. If courts were inexorably bound to precedent, Plessy v. Ferguson (8) would still be the law of the land.

I am aware that some have suggested that, in the case of state--as opposed to federal--constitutional decision making, the pull of stare decisis actually should be stronger. (9) State constitutions, the argument goes, are easier to amend than the federal Constitution. So, because erroneous state constitutional decisions can be relatively more easily remedied by constitutional amendment, the courts should feel more bound by their precedents.

I think such arguments are flawed. While the relative ease with which law may be amended seems a fair consideration, it is not clear to me that the benchmark is the difficulty with which the federal Constitution may be altered. More pertinent, it seems to me, is the fact that the state constitution is the highest source of law in the state and, compared with other sources of state law, remains difficult to amend. (10)

That does not mean that state courts should be free to reconsider, willy-nilly, any and all prior cases simply because those courts would have preferred a different outcome. There must be principles that govern the exercise of a court's judgment about whether, in a given case, the costs exceed the benefits of adherence to precedents.

The Oregon Supreme Court has wrestled openly with these questions in the last several years. The court moved from a more rigorous adherence to the principle of stare decisis to a more nuanced and flexible approach to the pull of precedent in state constitutional cases. The result has been a fair amount of housecleaning, as the court has unhesitatingly overruled a number of prior state constitutional decisions. A review of the court's recent decisions, however, reveals that it has been cautious to jettison prior cases only when circumstances warrant.

For a number of years, the Oregon Supreme Court rigorously followed the doctrine of stare decisis. In its statutory construction decisions, for example, it adhered to the notion that, when it determined the meaning of a statute, its interpretation became part of the statute itself, "as if written into it at the time of its enactment." (11) In the court's view, only the legislature possessed the power to remedy any errors; the court declared itself essentially powerless to correct mistakes in the construction of statutes.

In its constitutional cases, the court similarly adhered to a version of stare decisis that left very little room for correction of past errors. A controversial free speech case, State u. Ciancanelli, (12) illustrates the point. In that case, the State asked the court to overrule prior case law on the ground that it could not be justified by the court's adopted approach to constitutional interpretation, which turned on the understanding of the constitution at the time of its framing. (13) The prior case law broadly held that a regulation of speech is unconstitutional unless confined to one of a very limited list of "historical exception [s]"--regulations like fraud and criminal solicitation that the framers would most certainly have understood the state retained the authority to regulate. (14) The State argued that the existing doctrine was developed without regard to the widely held nineteenth-century understanding that constitutional free expression guarantees prohibited only prior restraint. (15)

The court was not persuaded. At the outset, the court acknowledged that its prior case law had been adopted without any examination of the intended meaning of the relevant constitutional provision. (16) The court further acknowledged that the State was correct that its case law could not be reconciled with what most mid-nineteenth-century courts and treatise writers said about the nature of constitutional free expression guarantees. (17) But, the court continued, stare decisis requires that the existing case law must be accorded a presumption of validity. (18) That means, the court explained, that even if current case law runs counter to the law prevailing in the mid-nineteenth-century, there must be evidence that the framers of the Oregon Constitution intended to follow that prevailing view. (19) The court found in the historical record no evidence of precisely what the framers of the state constitution thought about the issue. (20) It therefore concluded that the State failed in its burden. (21)

Whatever one may think of state constitutional interpretation generally, or of free expression doctrine in particular, Ciancanelli represents a very strong version of stare decisis. It clothed existing doctrine with a presumption of validity, even though it had been adopted without anything like the analysis that the court ordinarily requires. And it reaffirmed that existing doctrine based on little more than an absence of evidence that it was incorrect.

More recent decisions signaled a shift in the court's thinking, however. That shift began with a non-constitutional case, one involving the interpretation of the state financial responsibility statute. But the court's explanation of the doctrine of stare decisis was stated in much broader terms, expressly embracing constitutional precedents as well.

The case was Farmers Insurance Company of Oregon v. Mowry. (22) The specific issue is not important for our purposes. (23) What is important is that the state's financial responsibility statute had been interpreted in a particular way in a case decided twenty years earlier. (24) That prior case was controlling. The only issue before the court was whether to adhere to it. (25) Recall that, at least to that point, the Oregon courts adhered to an especially rigid "rule of prior construction," which purported to divest the court of authority to reconsider prior statutory construction decisions. (26) In Mouiry, therefore, the court had to address first whether it would adhere to its rule of prior construction before entertaining the prospect of overruling its earlier interpretation of the statute.

The court abandoned the old rule of prior construction. (27) In the process, it engaged in a wide-ranging discussion of the doctrine of stare decisis and the question whether to apply it rigorously or with some flexibility. (28) The court began by acknowledging the '"undeniable importance of stability in legal rules and decisions,'" an importance that is "based on the values of predictability, fairness, and efficiency." (29) But the court also recognized a countervailing need to '"correct past errors.'" (30) Given those competing values, the court explained, stare decisis must not be "'arbitrary and inflexible."' (31)

The court noted that those competing values may weigh differently in different contexts--common-law, statutory, or constitutional. (32) In the case of constitutional analysis, the court noted, while stability and reliability certainly are important, it is also important for the court to be able to correct erroneous decisions, because "'[t]his court is the body with the ultimate responsibility for construing our constitution, and, if we err, no other reviewing body can remedy that error.'" (33)

In the case of statutory interpretation, in contrast, the legislature is readily capable of amending a statute in response to what it may perceive as an erroneous construction of its legislation. (34) The court noted that, because of that fact, earlier cases indulged an assumption of "legislative acquiescence" in prior interpretations, leading the court to adopt its rule of prior construction. (35) In Mowry, however, the court questioned the validity of the assumption and disavowed the rule of prior construction. (36) The court then proceeded to consider whether to overrule its prior construction of the financial responsibility statute. (37) In the end, the court decided to adhere to its earlier decision. (38) Noting the special importance of stability and predictability in the area of commercial transactions, the court concluded that, while...

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