The Elusive Doctrine of Stare Decisis by William Hutul and Joseph P. Callahan
Oliver Wendell Holmes once quipped: "It is the business of lawyers to know the law." Abraham Lincoln was someone who seemed to know the law. Yet Lincoln once argued a case before the Illinois Supreme Court during its morning session and then argued another case in the afternoon session, advocating a completely diametrical and contrary position to the stance he had taken earlier that day. The justices asked Mr. Lincoln how he could support two such opposing positions between the two sessions. Lincoln’s response was "The beauty of the law is its flexibility."
Given the dichotomies between these two legal truisms, the task of being a lawyer (or a judge) is much more overwhelming and difficult than most members of the public could ever imagine. One of the most difficult tasks of being a lawyer is keeping current with, and maintaining a good working knowledge of, "the law" as it develops. The proverbial term "the law" is used here in its broadest sense, as it includes many things beyond case law and statutes.
Anyone practicing law will acknowledge that staying abreast of the many-faceted and changing nature of the law is a very difficult task. In any particular area of the law there are a few distinguished and talented members of the bar (both lawyers and judges) who rise above the others, chiefly by their comprehensive knowledge of the law and by their practical skills applying that knowledge. It is refreshing to encounter a lawyer who actually knows what he or she is talking about and/or writing about. But why is this? One of the chief reasons is that the law is elusive, and understanding "the law" in any area of practice is much easier said than done. The lawyers (and judges) who succeed in staying knowledgeable about the law are those we admire most and call upon most often for help, when it’s needed.
Many lawyers become cynical over the years and find that the grind of reading case law continuously to learn the law’s nuances and finer points seems useless, tiresome, and a waste of valuable time. The legal system often appears to run like a bull dozer anyway, grinding out cases with "broad stroke" applications of the law. So why waste time with all the finer points of the law?
Given the ever-changing nuances of the law, one of the fundamental principles the practicing lawyer can take comfort in is the doctrine of Stare Decisis. Stare Decisis is translated "to abide by, or to adhere to, decided cases." Stare Decisis expresses the policy of the courts to stand by precedent and to not disturb settled points. It is also the means the courts use to ensure that the law will not change erratically but will develop in a principled and intelligible fashion.A general review of the doctrine of stare decisis and its primary rules can help the practicing lawyer and sitting judge to have an easier time of: reading the case law; understanding it better; and actually enjoying it more, as many of us enjoyed learning the law through the case law system back in law school. Although stare decisis provides that "the decision" may stand, the question becomes what does the decision stand for and more importantly for whom?
What Is Stare Decisis? The doctrine of stare decisis is one of the bedrocks of the law, and we learned early in law school that the law is founded on the belief that people are entitled to place reliance on established principles of the law found in the case law decisions with "assurance that they will not be overruled from one term of the court to the next term," and that the courts "will not arrogate to themselves legislative powers."
Oliver Wendell Holmes wrote in M.K & T Railroad Co. v. May: "It must be remembered that legislatures are ultimate guardians of the liberties …of the people in quite as great a degree as the courts." The statutory law and the case law precedents cannot be ignored by the courts, or judicial review is inevitable. As such, "the law" is not merely the personal opinions of the judge a case is heard before, but a system of "objective rules and standards" that removes the system of justice from "a chaotic exercise of judicial discretions and indiscretions." This is an accepted principle in our concept of law in our society. When lawyers urge judges to simply ignore the law, or to overrule the law, and re-write case law precedent, the doctrine of stare decisis is there and requires "strict adherence to prior decisions" such that the courts "will not depart from well-settled principles of law absent "good cause" or "compelling reasons."
However, the doctrine of stare decisis is not an inflexible rule, requiring blind adherence to case precedent. When compelling reasons require the court to deviate from precedent, the court should not adhere to prior decisions.
The doctrine of stare decisis means that: "A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy." "Stare decisis then is the policy to stand by precedent, and term is but an abbreviation of stare decisis et non quieta movere--- to stand and adhere to decisions and not disturb what is settled. Consider the word decisis. The word literally means, literally and legally "the decision." Nor is it the doctrine of stare dictis; "it is not to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi—"to keep to the rationes decidendi of past cases." Rather under the doctrine of stare decisis a case is important only for what it decides –for the "what" and not for the "why" nor the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, i.e. for the detailed legal consequence following a detailed set of facts."
The doctrine of stare decisis is at the core of the case law system, and it is at the core of knowing and understanding "the law" in its broadest sense, as all of "the law" comes to bear in the cases tried in the courts. If a lawyer is to predict what a judge is likely to do, and what will determine the outcome of the case, he must have a working knowledge of the doctrine of stare decisis.
An Illinois Perspective. The Illinois Supreme Court recognizes the doctrine to "express the policy of the courts to stand by precedents and not to disturb the settled points." The court held that "[w]hen a question has been deliberately examined and decided, it should be considered settled and closed to further argument." Yet the Illinois Supreme Court recognizes that the doctrine is not an "inexorable command." The Court stated "Good cause to depart from Stare Decisis also exists when governing decisions are unworkable or badly reasoned.
There are also other exceptions to the concept of Stare Decisis. For instance, the concept of Stare Decisis will not stand if it can be shown to cause serious detriment of prejudice to the public interest. With that in mind, established (previous) decisions can be overturned only on a showing of good cause. Stare Decisis is not an absolute barrier to reconsideration of prior decisions or principles where adequate cause is shown or compelling conditions exist.
Illinois recognizes how such a decision can be overturned. Once the Illinois Supreme Court has spoken upon a particular subject or issue, its pronouncement is compelling. Only the Supreme Court can overrule or modify its previous opinions and lower courts are bound by such decisions. Yet the application of this concept as seen below is anything but uniform.
For What Does the Decision Stand? In analyzing the doctrine of stare decisis and how it applies to a particular holding of a court, the basic tenet provides that "where the Supreme Court has declared the law on any point, it alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow such cases in similar cases.
The doctrine of precedent, or stare decisis, requires that subsequent courts, faced with a set of facts indistinguishable in any material particular from those in the precedent case, must apply the ratio decidendi of a case, or the principle of law which is the basis of the actual decision of the case."
Of course, there is much debate about when the facts of a case are materially indistinguishable or distinguishable from the precedent case, and this is a source of much argument on the application of case law to any particular situation.
Some would argue that there are no two cases that are truly similar or identical in their material facts and that all cases are unique, involving differing factual circumstances in one manner or another. These practitioners will argue strongly against a case cited to pin them down on the law that "a judicial opinion can only be read as applicable to the facts involved, and it is authority only for what was actually decided." This is a true statement of the law. However, all case precedent is not distinguishable. The precedent case does not have to be identical in every manner to be binding precedent or persuasive precedent.
It is also well settled that "the precedential scope of a decision is limited to the facts before the court." This rule of law in the doctrine of stare decisis renders comments by the court in a case precedent, as to facts not essential to the decision, as obiter dictum. "A court may not speak authoritatively upon questions not involved in the litigation." An expression or statement by a court on a matter not integral to the case, nor necessary to a decision, is obiter dictum- a mere passing comment which is not binding authority or precedent within the rule of stare decisis. However, it is interesting to watch such jaundiced and cynical lawyers argue that the precedent case they have cited is identical and on "all fours" with the case before the court, and therefore controlling case precedent.
It is clear from any review of the cases on the doctrine of stare decisis that all inferior Illinois courts are bound to follow the decisions of the Illinois Supreme Court. Illinois Supreme Court decisions are binding on all lower courts in the State of Illinois. This indicates that every practitioner or judge should read and digest all of the rulings of the Illinois Supreme Court, and especially the rulings that relate to their area of practice or concentration.
If your reading is limited due to lack of time, concentration, or disability, it is clear that reading the Illinois Supreme Court opinions is crucial to any practitioner in Illinois. Therefore, if anything is going to be read, and if much is going to be ignored, the highest priority should be on staying current with Illinois Supreme Court case law decisions.
Justice McLaren of the Second District Illinois Appellate Court, in discussing what the Doctrine of Legal Precedent means, succinctly wrote in his dissent in People v. Trimarco: "Precedent simply means that like cases should be treated alike. Stare decisis requires that the holding of a case with facts sufficiently similar to the case at issue, be applied by courts of equal or lesser position in the hierarchy within the same jurisdiction."
Justice McLaren’s guidance in this regard on legal precedent is very helpful, but even he points out in the Trimarco dissent that it is difficult to know exactly when a case is "identical to" or "reasonably similar" to those in a compared case. When the material facts in the compared case do not line up with all the facts ("on all fours") in the putative precedent, the job of determining whether a case precedent is binding or not, can become "the most difficult job in the judging business."
For Whom Does the Decision Stand? In surveying judges on this issue, it appears that one of the common errors of many attorneys is to believe certain case law means more than it decided, and that cases are often cited for propositions of law for which they do not exactly stand. As such, many cases that are distinguishable on their facts, procedural settings, legal context, and actual holdings are cited liberally and improperly.
For instance, it is important to remember that a precedent case tried on its merits may not be precedential on the elements required to state a cause of action on a motion to dismiss. Even a precedent case which ruled upon a motion to dismiss brought under Section 2-615 may not be precedent and may be completely distinguishable in determining a pending motion to dismiss brought under Section 2-619. The procedural settings and the material facts in case precedents should be considered carefully before liberally citing a case as a binding legal precedent.
An exact formula for ‘how close the facts in a precedent case must be’ cannot be set down with any certainty. This is largely a matter of the skill and analysis of the individual attorney, but it is not wise to extend, twist and stretch the facts of a putative case precedent far beyond its factual borders and procedural legal setting. A court is not likely to find a case binding precedent when the facts are totally dissimilar to the facts alleged in the complaint pending before the Court.
It is important to note what type of case the alleged precedent is, in terms of its legal theories and allegations. A frequent error and temptation among attorneys (including your writer) is to cite a case which contains a doctrine from the law in another area of the law, as being applicable to the case before the court (not the same area). For instance, the parole evidence rule is a fundamental doctrine of the law of contracts, which prohibits modification of contracts through prior oral agreements made but not reduced to writing. This rule is a bedrock of the law in contract actions, and is a vitally important legal doctrine in contract claims. This same rule though has little bearing, if any, to oral misrepresentations made (not reduced to writing in the contract) in a fraud claim arising out of the same transaction. Yet, contract case precedents are frequently cited in fraud cases by experienced lawyers. The setting of a case precedent and the claims made are important to its precedential value.
One rule of stare decisis which is steadfast in Illinois is that a Circuit Court is also not allowed to ignore the decisions of the Illinois Appellate Court, and is bound to follow the decisions of the Appellate Court in rendering decisions. It is the absolute duty of the Circuit Courts to follow the decisions of the Illinois Appellate Court.
One of the strange oddities of the law of stare decisis is that there are occasionally conflicts between the rulings in different appellate districts. The Supreme Court of Illinois is called upon to resolve these conflicts from time to time. Much legal debate has arisen from this, as case law decisions have held that the Circuit Court is bound to follow the case precedent of the Appellate Court in the judicial district in which it sits, and not to follow the Appellate Court ruling of another district. This case law has received much criticism as the Illinois Supreme Court has also ruled that there is only one Appellate Court in Illinois. As such, in theory, there should never be "a conflict" between the Appellate Courts in different geographical districts, and the last case decided should control. Alas, we do not live in a theoretical world, and there are several glaring examples of how this theoretically precluded conflict of law effects practitioners in Illinois.
Example One: Magnuson Moss. One strange area of the doctrine of stare decisis relates to the often complicated impact of federal court decisions on Illinois Courts. While all the complicated details of these rules are beyond the scope of this short article, some of the general rules are amusing. While it is well settled that federal decisions are not binding on Illinois state courts, they may be cited as "persuasive authority" and they may be followed if the state court believes the federal analysis to be "reasonable and logical." This "reasonable and logical" limitation also has troublesome implications.
However, Illinois courts and federal courts have long taken different views on various subjects, such as whether a consumer can sue a car manufacturer for breach of implied warranty under the federal Magnuson Moss Warranty Act. The federal courts have ruled that a consumer cannot sue a manufacturer for breach of implied warranty, while the Illinois courts have not chosen to follow the federal court’s interpretation of the federal statute.
In Mekertichian v. Mercedes-Benz USA, Inc, the defendant argued that the Illinois courts should follow the rule of law as adopted by the federal courts in interpreting the federal Magnuson Moss statute, and prohibit consumer actions directly against a car manufacturer for breach of implied warranty, based on a lack of privity. The Illinois Appellate Court ruled that the doctrine of stare decisis required the Appellate Court to follow the Illinois Supreme Court’s holding in Szaja v. General Motors Corp. and allow the action, thereby disregarding the federal court’s rulings even on the federal statute. As such, the impact of federal decisions on Illinois law, and on what Illinois judges might do, is more complicated than one might think, but the rule of stare decisis still exists in the midst of these complicated issues.
Example Two: Use of Photographs at Trial. If indeed there is only one appellate court in Illinois, the doctrine of stare decisis is further skewed by disparate rulings between different appellate districts. Depending upon where one is located in the state, one might have very different expectations on what type of holding is likely in a case. For instance, crossing from one appellate district to another can often result in significant ramifications in evidentiary rulings.
An example of this inter-district dissonance relates to the use of certain photographs in personal injury cases. The issue generally arises in rear-end collisions in which the defense attorney seeks to introduce accident photos, which generally depict minor or no damage to the vehicles, to support the proposition that there was only minor damage to the automobile and that the plaintiff’s injuries could not be that significant. The issue becomes whether these photos are relevant for showing a correlation between the amount of damage and the alleged injury without some form of expert testimony. The issue has been addressed by three different appellate districts-- with no clear consensus between them. Remarkably, all of the districts begin at the same starting point as to the determination of what is relevant evidence. All agree that relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence."
Based on its prior decision in Wojick v. City of Chicago, the Illinois Appellate Court for the First District thus held that there needs to be expert testimony to support such a correlation. While not mandating such a hard and fast rule in every case, the court did not want the jury to engage in "unguided speculation" to "infer" such a connection. It would later revisit the issue in Baraniak vs. Kurby, at which time the court held that there needed to be expert testimony to show a connection between the degree of damage and the degree of injury. Without such expert opinion, the photographs are not relevant.
On the opposite side of the state, Fifth Appellate District in two separate decisions declined to decree the need for such expert testimony. The Fifth Appellate District would leave the decision of relevance to the discretion of the trial judge. It felt that a jury could assess the relationship between the automobile’s minor damage and the plaintiff’s injuries without the aid of an expert. The Fifth Appellate District was not concerned with "unguided speculation", and held that the photographs were relevant to prove the plaintiff’s injury was more or less probable.
The Third Appellate District would also leave the decision of the pictures’ relevance to the trial judge’s discretion. Instead of an expert, the Third Appellate District would allow the trial judge to decide whether the admission of the photographs were of such a nature as to assist a jury in determining whether the plaintiff’s injuries were more or less probable. The photographs would be relevant if the judge felt a lay person could assess the relationship between the damage to the vehicles and the alleged injury. Interestingly, the court stated that its decision was in line with the First Appellate District’s DiCosola decision, as it interpreted the decision to stand for the proposition that while expert testimony may be necessary in some occasions, this was not a rigid rule absolutely requiring an expert. Rather, it construed the holding to defer to the trial court’s discretion as to whether such expert testimony would be needed. The defense attorney who seeks the admission of post accident photographs may be better served relying on a map of the state’s appellate boundaries than by a reliance on the principles of stare decisis. Conclusion. The lawyer who desires to practice well in an area of the law in Illinois is well advised to read all the cases published by the Illinois Supreme Court in that area, and to keep a running dialogue with other well-read practitioners in that area of the law. The cases published from the Illinois Appellate Court should also be followed carefully in any area of concentration or specialty. The law of stare decisis would encourage a lawyer who is avid in a particular area to keep a running flow chart of the case law, and of the direction the Illinois Supreme Court and Appellate Courts are taking in the area a practitioner has chosen, so that the potential rulings of the Circuit Courts can be better predicted and gauged.
A reading of the federal court decisions in a particular area can also be helpful to the Illinois state court practitioner. This is perhaps the most fascinating area in the doctrine of stare decisis, as the two different level of government court systems can literally have very divergent precedents on key issues of law and procedure.
A frequent review of the doctrine of stare decisis is a useful and helpful tool to the Illinois practitioner. This doctrine is not often reviewed by the Courts when rendering decisions, but is implicit in every decision a Court makes. The actions of a Court are almost without exception based on prior rulings, rules, regulations, statutes and case decisions, whether or not the litigants, practitioners, or judges realize it at the time. If the business of lawyers is knowing "the law" as Justice Holmes quipped, given its flexibility, it is a tough job for lawyers and an even tougher one for judges.