BY CHRISTOPHER JACKSON
A recent Colorado Supreme Court opinion suggests that the Court is undergoing a substantial shift in its horizontal stare decisis jurisprudence. This article examines the current state of the law and identifies some issues the Court may take up in the near future.
Stare decisis—Latin for "to stand by things decided"1 —has long been a rather sleepy area of law. Most practitioners and judges take it for granted that courts will follow earlier judicial decisions if the same issue comes up again in another case. But that principle is subject to two important exceptions. First, a judicial decision isn't binding on all courts; a somewhat complex set of rules dictates which decisions bind which courts and how federal and state judicial systems interact—a concept commonly called "vertical stare decisis."3 Second, and more important, a court may, in compelling circumstances, depart from "horizontal" precedent by deciding to overrule one of its own prior decisions.4 But what exactly qualifies as a "compelling circumstance"? That question is particularly important when it comes to the Colorado Supreme Court and any other court of last resort (including, of course, the U.S. Supreme Court); because such a court is the final arbiter on the interpretation of a certain class of laws, it's the only body that can formally overturn one of its own decisions.
This often-overlooked issue received heightened scrutiny with the recent additions of Justices Gorsuch and Kavanaugh to the U.S. Supreme Court.5 It's also worth looking at stare decisis in Colorado, particularly at how the Colorado Supreme Court conceives of its "precedent on precedent"—that is, the way it decides when to depart from a prior ruling. A recent opinion suggests that the Colorado Supreme Court may be rethinking its horizontal s tare decisis jurisprudence. This article reviews the current state of Colorado law and analyzes open issues the Court may face in the near future.
The Creacy and Blehm Cases
For decades, the Colorado Supreme Court's law on horizontal stare decisis remained mostly unchanged. In 1961, in Creacy v. Industrial Commission, the Court broadly recognized that previous decisions "will not be departed from for slight or trivial causes, and certainly not where such departure would promote injustice or defeat justice."6 In that case the Court identified a few relevant factors for analyzing when to depart from a prior ruling, including the length of time a particular rule has been in place, whether the decision has become "firmly embedded in the jurisprudence of the jurisdiction," and whether it was "handed down by closely divided courts."7
By the 1990s, the Court had settled on a particular formulation of this rule. In People v. Blehm, the Court articulated, apparently for the first time in a majority opinion, "that a court will follow the rule of law 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 from departing from precedent." Thus, a litigant seeking to overturn a previous decision must clearly convince the Court that (1) the original decision was wrong or has become unsound, and (2) more good than harm will come from overturning it.
In Creacy, the Court recognized the importance of "uniformity, certainty, and stability of the law and the rights acquired thereunder."9 Yet neither Creacy nor Blehm discussed one of the principal justifications for stare decisis: reliance, or the idea that "people have organized [their lives] and made choices" based on a previous decision. Thus, the Creacy-Blehm line of cases justifies horizontal stare decisis on broad principles and provides little practical guidance on when the Colorado Supreme Court will depart from the doctrine.
Novotny Signals a Change
In 2014, the Colorado Supreme Court's thinking appeared to shift rather significantly. That year the Court decided People v. Novotny, a criminal case about whether automatic reversal was the proper remedy for an erroneous ruling on a challenge for cause during jury selection.11 The Court overruled its prior decisions and held that these errors aren't structural and don't require automatic reversal. In doing so, the Court spent considerable time discussing stare decisis. But it didn't rely on its earlier pronouncements; it included only a cursory citation to Creacy and made no reference to the standard for overturning precedent.13 Instead, the Court focused on U.S. Supreme Court decisions, relying primarily on Planned Parenthood v. Casey, the 1992 case where a closely divided Court declined to overturn Roe v. Wade.14 In Novotny, the Colorado Supreme Court also expressed little deference to its previous decisions and suggested that the scope of horizontal stare decisis was quite narrow.
The Court began by noting that "[w]hether the highest court of any jurisdiction will choose to follow or depart from its own prior decisions must ultimately remain a matter of discretion."15 It then held that, because it was the only body capable of overturning one of its previous decisions, "it is not merely within our discretion but in fact our obligation, when given the opportunity, to expressly overrule any of our prior holdings the necessary premises for which are no longer good law."16 The existence of that obligation depends on
the practical workability of that [prior] decision; the extent to which a departure would work a hardship or inequity on those who have relied on and ordered their behavior around the prior ruling; and, whether the principles upon which the ultimate holding is premised... have themselves developed in such a way as to leave the prior ruling without support.17
Novotny was a substantial change to the Court's precedent on precedent in at least three ways. First, the Court explicitly grounded its reasoning on decisions from the U.S. Supreme Court, rather than common law principles or its previous opinions.18 Second, Novotny adopted a narrow view of horizontal stare decisis, indicating that the Court has not just the right but the obligation to overrule decisions that it thinks were wrongly decided. And third, the Court offered specific factors—including reliance interests—that it would consider in assessing whether to follow its previous decisions.
A Return to Creacy and Blehm, and Back Again
Soon after Novotny, the Court retreated from its new construction of horizontal stare decisis. In a string of cases from 2015 to 2018, the Court relied instead on the Creacy and Blehm standard, omitting any reference to Novotny or its list of factors...