How And When To Ask A Court To Overturn Intermediate Appellate Precedents

Published date03 October 2022
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation
Law FirmHanson Bridgett LLP
AuthorMr Adam W. Hofmann

In CoreCivic, Inc. v. Candide Group, LLC, 46 F.4th 1136 (2022), the Ninth Circuit reaffirmed 20 years of decisions holding that special motions to strike under California's "Anti-SLAPP statute" may be filed in federal diversity actions. As the court reflected, circuits have split over the federal implementation of the various states' Anti-SLAPP motions. See id. at 1142-43. But the Ninth Circuit's position on this question has been long settled. Id. at 1140. And the Ninth Circuit's latest published opinion on the issue does not reconsider the merits of the issue or even attempt to defend its rule against the criticism it has faced from other circuits and even Ninth Circuit judges. See, e.g., Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (Kozinski, J. concurring). Rather, the decision merely explains the court's refusal to reverse itself. The relative merits of its precedent and the strength of a party's arguments against it are largely irrelevant; a Ninth Circuit panel is bound to follow the court's past decisions except in exceptional circumstances. See id. at 1140-43.

So, what is a litigant to do when it has a need and good faith basis to challenge otherwise binding case law from intermediate appellate courts? Some discussion of the governing principles will help inform an approach.

Any conscious effort to overturn precedent must begin in the trial courts. As goes almost without saying, federal district courts are bound by the decisions of circuit courts. See, e.g., Hatter v. Dyer, 154 F. Supp. 3d 940, 951 (N.D. Cal. 2015) (citing Sanchez v. Mukasey, 521 F.3d 1106, 1110 (9th Cir. 2008)). They may only decline to follow circuit authority that has been overruled by or is "clearly irreconcilable" with an intervening decision by the U.S. Supreme Court or by the entire circuit sitting en banc. Id. (citing Miller v. Gammie, 335 F.3d 889, 899, 900 (9th Cir. 2003), and Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)). To a lawyer, trained to argue that almost any given case is clearly irreconcilable with some other case, this may sound almost like a dare. The bravado of counsel notwithstanding, district courts treat this as a high bar, upholding precedent whenever it can be reconciled with intervening higher authority. Id. (citing Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012)).

California superior courts operate under similar standards. They are generally bound by the published opinions of all courts of appeal, but may decline to...

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