Back in February, the Supreme Court of Washington decided In re Arnoldwhich held that a Division of the Court of Appeals should not follow the decisions of the other Divisions as a matter of horizontal stare decisis. As I observed at the time, the Supreme Court’s distinction between inter-Division conflicts and intra-Division conflicts doesn’t find much basis in the law:

The statute does not distinguish between inter-Division and intra-Division panels. So when the Court says that “under the statute creating the Court of Appeals, conflicts are resolved not by stare decisis within that court, but by review in our court,” the Court’s ruling should apply with equal force to a three-judge panel following the prior decision of a different three-judge panel within the same Division. As I wrote previously: None of the governing statutes distinguish between inter- and intra-Division panels for purposes of stare decisis.

Last week, Chief Judge Appelwick of Division 1 decided to take the next logical step. He asserted that “[o]ne division of the Court of Appeals is not bound by the decision of another division” (citing to In re Arnold). But then he went further: “Nor is one panel of the Court of Appeals bound by another panel, even in the same division.” In re Marriage of Snider at 4 (emphasis added)

In support of this assertion, Chief Judge Appelwick cited to Grisby v. Herzog, 190 Wn. App. 786, 810-11, 362 P.3d 763 (2015). I don’t think Grisby quite gets all the way there. In Grisby, a panel of Division 1 concluded that two previous Division 1 opinions were in conflict: 

It is relatively uncommon, but not unknown, for panels within a single division to be in conflict with each other. Here, we confront a conflict within Division One: Ziegenfuss disagreed with McNeal about how to read [the United States Supreme Court’s opinion in] Scarpelli.

Grisby v. Herzog, 190 Wn. App. 786, 810-11, 362 P.3d 763 (2015).

But the Grisby panel was faced with the problem of two ostensibly “binding” previous panel decisions that appeared to be in conflict. No matter what the Grimsby panel did, it would be rejecting the holding of a prior Division 1 panel. That doesn’t exactly support the idea of complete freedom to reject any previous panel decision with which you might disagree.

For the power to reject a prior panel decision, you’d want to look at the opinion that created this conflict in the first place. That second panel was the one that determined it wasn’t bound by the previous opinion from another panel in the same division.  

The problem here is that the second panel—in State v. Ziegenfuss, 118 Wn. App. 110, 116, 74 P.3d 1205 (2003)—didn’t seem to think it was rejecting the first panel’s decision in In re McNeal, 99 Wn. App. 617, 994 P.2d 890 (2000). Or if it did think that’s what it was doing, it didn’t quite cop to it. Here’s what the Ziegenfuss panel had to say about McNeal

The State contends that under McNeal, due process does not require representation by counsel in community custody violation hearings. [cite to McNeal.] The right to counsel, however, is determined on a case by case basis. [cite to Scarpelli.]

And then, in a footnote:

We note that Ziegenfuss’ case differs factually from McNeal in that McNeal was decided when community custody referred only to DOC supervision in lieu of earned early release. McNeal simply interpreted the U.S. Supreme Court’s decision in Gagnon v. Scarpelli, which held that the question of whether due process requires counsel at parole revocation hearings must be answered on a case-by-case basis. Scarpelli, 411 U.S. at 790, 93 S.Ct. 1756.

Maybe the Ziegenfuss panel was wrong. Maybe it was trying to avoid McNeal‘s holding. Maybe it was playing fast and loose with the idea of horizontal stare decisis. I have no clue. But one thing the Ziegenfuss panel did not do is expressly purport to overrule or reject McNeal. It wasn’t until the later Grimsby panel examined the decisions that the court saw a conflict. 

Grimsby cites to a few examples of real rejections—opinions where a panel expressly rejects a previous panel’s holding from within the same Division. One example comes from the post-Blakely chaos: State v. Giles, 132 Wn. App. 738, 132 P.3d 1151 (2006). The Giles panel didn’t mention precedent or stare decisis; the judges just “respectfully disagree[d] with [their] learned colleagues” on a prior panel. Another example used the Supreme Court’s familiar “incorrect and harmful” framework, but applied it to a previous panel decision. King v. W. United Assur. Co., 100 Wn. App. 556, 997 P.2d 1007 (2000). Which (if any) of these approaches is the right one? Perhaps the Supreme Court will decide at some point.

Anyway, this is all academic for now. Chief Judge Appelwick’s line about intra-Divisional stare decisis was purely dicta. The panel explained that the trial court was right to follow a previous Division 2 decision. And then the panel itself agreed with Division 2’s holding. So everyone walked away happy.

But I’m still waiting the Supreme Court to review of a Court of Appeals decision because the panel “wrongly” followed a previous decision from within the same Division.