Should the Ohio Supreme Court overrule its decision setting forth the standards by which the Ohio Supreme Court should determine whether to overrule its decisions? That was the subtext of a decision by the Court last week in a workers compensation case, that could have major ramifications in criminal law.
I've blogged before about some of the absurdities of Ohio law regarding allied offenses and merger, mainly owing to the Supreme Court's decision in State v. Rance back in 1999. Up to that point, Ohio courts had employed the "separate animus" test in determining whether two crimes, such as kidnapping and rape, merged: if the kidnapping was only "incidental" to the rape, then the two offenses merged; on the other hand, for example, if the defendant drove the victim to a different place and then raped her, the kidnapping was held to be separate from the rape, and the two crimes didn't merge. In Rance, the court did away with that and announced a different standard: the two crimes were compared in the abstract, and if one could ever be committed without committing the other, they didn't merge.
As I mentioned, this has generated both criticism and confusion, in pretty much equal amounts. In fact, this past January the Supreme Court had oral arguments in the case of State v. Cabrales, in which the 1st District had held that preparation of drugs for sale and possession of drugs were allied offenses, a decision that calls into question the Rance doctrine.
So I found somewhat interesting the Supreme Court's decision last week in Groch v. General Motors. Groch involved a number of issues, but the one I keyed on was the 10-year-state of repose for a manufacturer's product liability: if the item had been manufactured more than ten years before the accident, liabiility was barred. The Supreme Court had upheld such a statute in 1990, but just four years later reversed course and held it unconstitutional. Groch presented the question of whether the court should reverse itself once more.
The principle of stare decisis is based primarily on a desire for stability and predictability in the law, but it's also a defensive mechanism. Courts propagate the myth that the law is a fixed object, not dependent on the whims of particular justices, but that belief is undercut when a the court's composition is changed, and a new batch of judges proclaim that the law isn't what the last batch of judges said it was. Stare decisis preserves stability and the myth. On the other hand, precedent shouldn't be a strait jacket: times change, and judges goof, and there has to be some way to accomodate both those events.
The Court confronted that dilemma in 2003 in Westfield Ins. v. Galatis. Four years earlier, the Supreme Court had ruled in Scott-Pontzer v. Liberty Mutual that anyone injured in a car accident could recover under his employer's uninsured motorist benefits. The opinion was simply horrible, and the Galatis court could have just said, "this decision is so bonecrushingly stupid that we have to reverse it," and called it a day. Instead, it announced a complex test for determining whether a prior decision should be overruled: it was wrongly decided at the time, it is unworkable or impractical, and overruling it wouldn't unduly harm anyone who'd relied on it.
Galatis demonstrates the problems of developing an analytical framework from a particular situation, rather than in the abstract. The criteria fit Westfield perfectly, primarily because it was such a terrible decision; virtually any set of criteria would have been sufficient to overrule it. The problem is that Galatis' criteria may be too strict. What happens if the bad decision is no longer "unworkable," simply because everybody has adjusted to it? The law is the law, and people come to rely on bad decisions just as much as good decisions, because they don't have any choice. Why should that prevent a bad decision from being overturned?
The result, as Justice Lanzinger points out in her concurrence in Gnoch, is that Galatis itself has become unworkable, because it imposes too many hurdles to overruling a previous decision. As she notes, while the majority in Gnoch spends a good bit of time talking about Galatis, it never gets around to using it in deciding that the 1994 decision striking down the statute of repose was wrong. The Court followed a similar tactic in recently upholding the latest spate of tort reforms passed in 2005; as I discussed here, instead of overruling the prior decisions which struck down prior similar reforms, the Court simply pretended to distinguish the new statutes from the old ones, even though they were in many instances identically worded. The reason? There's no way overruling the earlier decisions would have met the Galatis test.
All this becomes critical when considering the oral arguments in Cabrales last month. The case forces the Court to take another look at Rance, and Justice Moyer raised the question of whether that required consideration of the Galatis doctrine. Overruling Rance would be easier if all the Court had to say was, "This wasn't a good decision, and the harms of keeping it outweigh the benefits." That might be a little too cavalier an approach to stare decisis, but it's becoming increasingly evident that the overly formulaic approach of Galatis isn't the answer, either.