Saturday, June 21, 2008

Doctrine of interpanel accord

Even before NMCCA posted its Wuterich opinion on NKO yesterday, my treasured colleague Tim Cox sent me a link to a recent article about intra-circuit splits from the Federal Court Law Review. Michael Duvall, Resolving Intra-Circuit Splits in the Federal Courts of Appeal, 2008 Fed. Cts. L. Rev. 1 (April 2008).

Mr. Duvall writes: "Three-judge panels are not separate courts; they speak on behalf of the circuit. Therefore, a decision issued by a panel is entitled to deference from later panels under the doctrine of stare decisis." Id. at 1. He then explains the federal circuits' universal adherence to the law of the circuit doctrine and its rationale: "[E]very circuit court has prescribed the prudential rule that a later panel may not overrule a decision issued by a prior panel; only the en banc court or the Supreme Court may take that step. Later panels steadfastly adhere to this prior panel precedent rule by frequently citing their disagreement with a previous panel's decision while simultaneously following it as the law of the circuit." Id. at 1-2 (internal footnote omitted).

A practice followed by every federal circuit is probably one worth emulating. CAAF has thus far declined to rule on whether the CCAs must follow the doctrine of interpanel accord. See United States v. Townsend, 49 M.J. 175, 177 (C.A.A.F. 1998). But interestingly, CAAF's rules suggest that a CCA's failure to follow the doctrine of interpanel accord may make a case appropriate for CAAF to review. CAAF Rule 21(b)(5) provides that a supplement to a petition for grant of review shall contain an "argument showing why there is good cause to grant the petition," and "[w]here applicable, the supplement to the petition shall also indicate whether the court below has . . . decided a question of law in a way in conflict with applicable decisions of . . . another panel of the same Court of Criminal Appeals." NMCCA has certainly done so in both United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008) (Dossey II), and United States v. Wuterich, __ M.J. ___, No. NMCCA 200800183 (N-M. Ct. Crim. App. June 20, 2008).

But NMCCA can (and should) now follow the doctrine on interpanel accord by reconsidering Dossey II and Wuterich en banc to decide whether Article 62 should be construed according to its published precedent in United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994), and United States v. Santiago, 56 M.J. 610, (N-M. Ct. Crim. App. 2001), or instead according to the almost opposite approach adopted in Dossey II and Wuterich.
Posted by Dwight Sullivan at 3:34 PM

14 comments:

John O'Connor said...

Well, I guess it's my week as doctrinal contrarian. I'm not a big fan of any doctrine of interpanel accord. To me, the idea that one panel of a court is bound not by a decision by a higher court, but by the decision of three judges from the same court, simply because those judges got a decision out first is, well, stupid.

I don't see why a second panel should have to obtain the extraordinary result of obtaining an en banc review before issuing an opinion it believes is correct under the binding precedent of higher courts (or correct and not contrary to higher court precedent). Now that might be a really good reason for the court to en banc the second decision, but a lack of interest in going en banc shouldn't bind a second panel to an earlier (and arguiably erroneous) decision by a prior panel of the same court.

I know that's a rule that appellate courts usually honor, at least in the breech, but that doesn't mnake it good judging.

Sat Jun 21, 04:35:00 PM EDT
Dwight Sullivan said...

One of the main benefits of the doctrine of interpanel accord is to make the law predictable. If a published decision in a circuit or a service provides a legal rule, then companies, taxpayers, prosecutors, trial judges, and every other consumer of judicial opinions should be able to rely on it as the governing law.

So if NMCCA were to say in a published opinion that a trial judge won't be reversed for denying a challenge for cause simply because one court-martial panel member writes the fitrep of another member and a trial counsel relied on that opinion to oppose a challenge for cause in a later case and the military judge relied on that decision to deny the challenge, it would seem to be a pretty bad justice system in which any resulting conviction and sentence would be reversed merely because 2 judges on another NMCCA panel thought the rule should be otherwise.

In a civilian context, play out a similar scenario with literally billions of dollars on the line in detrimental reliance on the first published opinion. As the saying goes, sometimes it's more important that the law be settled than that it be settled right.

If a subsequent panel believes that the previous rule is dangerously off base, then there is the safety valve that the subsequent panel can try to get the case heard en banc, which would allow the full court to reverse the earlier opinion. If the panel can't even convince a majority of the multi-panel court to review the previous opinion's holding en banc, then that's a pretty good sign that the earlier case law can be lived with and predictability is the more important concern.

Sat Jun 21, 04:46:00 PM EDT
Anonymous said...

NMCCA denied en banc reconsideration in Dosey II but declared that it did not consider the panel decision in contradiction of the Court. Interestingly, the original motion was for en banc reconsideration and that was denied in favor of panel reconsideration. Quite frankly, NMCCA switches who is on a given panel nearly every day so it doesn't seem to matter in the end.

Sat Jun 21, 04:59:00 PM EDT
Anonymous said...

NMCCA panels contradict themselves weekly! One panel says fines are not an appropriate sentence absent unjust enrichment and literally the next week a different panel says they are a lawful punishment. Similar facts in the cases as well.

Sat Jun 21, 05:01:00 PM EDT
Christopher Mathews said...

I see the value of the doctrine, but wonder whether there's an intermediate position in which a published opinion of the court would trump an unpublished one without necessarily causing great consternation.

As you may know, the practice of the AFCCA was (and may still be) that a published opinion is reviewed by every active-duty judge -- i.e., the same people who would make up an en banc court.

Sat Jun 21, 06:20:00 PM EDT
Dwight Sullivan said...

JMTGst,

My understanding is that the doctrine of interpanel accord applies only to published decisions. See, e.g., Cooper v. MRM Inv. Co., 367 F.3d 493, 507 (6th Cir. 2004) ("Under the law-of-the-circuit doctrine, only the Court sitting en banc may overrule published circuit precedent, absent an intervening Supreme Court decision or a change in the applicable law."; Kennedy v. Lubar, 273 F.3d 1293, 1300 (10th Cir. 2001) ("the law of the circuit doctrine, as articulated in Burlington, refers generally to our policy that prior circuit precedent, derived from a published opinion on the merits, will not be overturned absent an en banc ruling of this court").

So an unpublished opinion of a multi-panel court would never bind a subsequent panel which would be free to establish the law of the circuit by publishing a conflicting rule (assuming no published opinion adopted the same rule as the unpublished opinion, of course).

Sat Jun 21, 08:40:00 PM EDT
Dwight Sullivan said...

1659 Anon,

Very interesting and disturbing about the denial of en banc rehearing in Dossey II. Keep in mind that Dossey II was a split decision flipping the earlier in panel decision in Dossey I.

Between Dossey I and Dossey II, there have been four votes to affirm the military judge and two to reverse his ruling. Yet the result of those votes is that his ruling is reversed. If that doesn't warrant en banc reconsideration, I have a hard time imagining what does.

Can you give us any more details about NMCCA saying that Dossey II didn't conflict with NMCCA precedent? Please don't tell me that NMCCA tried to pretend that Dossey II didn't conflict with United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994), and United States v. Santiago, 56 M.J. 610, (N-M. Ct. Crim. App. 2001). I can certainly understand someone arguing that Dossey II's broad interpretation of Article 62 is preferable to those previous decisions' narrow interpretation. But to contend that there is no difference between Dossey II and those earlier published NMCCA cases would be untenable.

Sat Jun 21, 08:48:00 PM EDT
John O'Connor said...

I don't really see how "[o]ne of the main benefits of the doctrine of interpanel accord is to make the law predictable." A prior panel's precedent can be rejected even under that doctrine, either through the en banc process of by intervening changes in the law from a higher court. Making decisions prospective only is about the only thing that actually creates total comfort in an MJ relying on existing precedent.

All interpanel accord does is reduce the likelihood that an incorrect panel decisdion will be corrected in a subsequent case, simply because it takes greater effort by the court in going en banc. It neither makes the original panel's decision correct nor does it make that original panel's statement of the law unassailable in a subsequent case.

In my mind, notions of interpanel accord (respected in the breech more than anything), canons of statutory construction, and presumptions as to what statutes will be construed narroiwly or broadly are, more than anything, post hoc methods of justifying a court's preferred result. Canons of construction are useful only because they are based on deductive logic. Rather than mindlessly applying a canon of construction (when there is almost always an exception or countervailing canon that could be relied on), a court is most faithful to its role by honestly assessing whether the logic behind a canon or presumption really applies in this case and then trying to make the fairest assessment of the scope of the statute in question.

Sat Jun 21, 10:41:00 PM EDT
Dwight Sullivan said...

A legal system that follows the doctrine of interpanel accord is far more predictable than one that doesn't. If a system doesn't follow interpanel accord, then any two-judge majority of a three-judge panel is free to change settled law and a two-judge majority of the next three-judge panel is free to change it back.

Interpanel accord makes it much more difficult to change published law but without completely calcifying the law and making it impossible to overturn the occasional erroneous precedent where it's more important that the law be settled right than that it be settled -- which is probably a small subset of the larger set of erroneous precedent.

Interpanel accord is an unlikely method to promote preferred results. On the contrary, as Duvall notes in his article, there are plenty of cases where judges say that they disagree with a particular precedent but are nevertheless constrained to follow it under the law of the circuit doctrine. Interpanel accord is a constraint on change -- it is a conservative doctrine in the non-political sense of the word. And, most importantly, it is a process-based doctrine. It spells out precisely how one can change the court's precedent and how one can't.

I understand the argument that competing canons can often be used to justify any desired result. Like Justice Scalia, I'm skeptical about that argument, but I understand it. The same isn't true of connection with interpanel accord. While it's possible that some willful judge might misuse the doctrine to reach a desired result, unfortunately a willful judge might use any source of law to reach a desired result. Interpanel accord doesn't seem to invite manipulation; on the contrary, it seems to invite respect for sound judicial process.

Sat Jun 21, 11:00:00 PM EDT
John O'Connor said...

The reason that a doctrine of interpanel accord can allow for post hoc justification for preferred results is because it is honored mostly in the breech. Courts regularly simply ignore prior circuit precedent, or weakly distinguish prior circuit precedent when they want to go another way.

The best course of action when a panel wants to issue a ruling contrary to a prior panel decision is for the court to take the case en banc and sort it out. To me, the second best course of action is to issue a decision that tries to get the legal issue right. I see the third best option being to issue a decision that tells one of the litigants that we really think you're right, but see there was this panel of this same court eight years ago and they said you were wrong.

Sun Jun 22, 07:14:00 AM EDT
Anonymous said...

Check NMCCA orders for the denial of en banc reconsideration and the affirmation (for lack of a better term) that states the panel reconsideration was not in contradiction of precident. Heck, it's a 62 appeal this will take CAAF an entire term to decide.

Tue Jun 24, 08:36:00 PM EDT
Dwight Sullivan said...

2036 Anon,

I can't find NMCCA orders on either the NMCCA web site or NKO. Is there an accessible web site that would have the Dossey en banc denial order?

Tue Jun 24, 09:20:00 PM EDT
brityank said...

At 16:46 caaflog wrote:

"As the saying goes, sometimes it's more important that the law be settled than that it be settled right."

Sorry to say so, but unfortunately that type of thought is what led to the Third Reich, and why the legal profession is held in such disdain. Without truth and honesty in the Law, there is no Justice.

Wed Jun 25, 03:13:00 AM EDT
Dwight Sullivan said...

0313 Anon,

Congratulations on validating Godwin's Law so quickly.

Of course there is nothing fascistic about the view that for most purposes, it is more important that the law be predictable than that it be right. For example, in 1990, the Supremes cited that principle in California v. FERC, 495 U.S. 490 (1990), where the Court held that a state's stream flow rate for a hydroelectric plant was superseded by the flow rate set by FERC under the Federal Power Act of 1935 because the water was not for irrigation, municipal use, or uses of the same nature. Now I have no idea whether that's the right interpretation of the Federal Power Act of 1935 -- nor do I much care. (Someone will probably argue that I should, but I still won't.) I have not doubt that business decisions were made and billions and billions of dollars were invested in reliance upon previous judicial interpretations of the Federal Power Act of 1935 indicating that the FERC-set flow rate trumped state flow rates. Let's hypothesize for the moment that those previous interpretations come to now be viewed as wrong and it seems that Congress didn't mean for FERC to preempt state flow rates. Here's an instance where it is almost certainly more important to adhere to precedent and continue to find preemption even if we now think that those cases were originally decided incorrectly. That's not fascism; that's basic fairness. If the rules were set out and businesses detrimentally relied on those rules, it is unfair to change them.

There are certainly limited instances where the opposite is true and it's more important to reach the right answer than to remain consistent. But those instances will be exceptional. Usually it's more important to recognize society's reliance on settled law than to ensure that the law had been settled in the most accurate way.

Wed Jun 25, 09:52:00 PM EDT

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