Monday, March 04, 2013

Bourhis v. Lord (Cal. Supreme Ct. - March 4, 2013)

Principles of stare decisis are typically throwaway values.  They get talked about and relied upon, but they don't actually matter.  High tribunals generally do what they want to do regardless of what their predecessors did decades ago.

Here's an exception.

I have a strong sense that the California Supreme Court (or at least some of the justices thereof) are of the opinion that a suspended corporation shouldn't be able to revive a notice of appeal filed during its suspension by paying its taxes after the jurisdictional appeal period has passed.  Nonetheless, because a case from the California Supreme Court forty years ago held the contrary, the court elects to follow that precedent and let the appeal go forward.

Justice Kennard makes a pretty good argument for going the other way, albeit solely prospectively.  But I'm persuaded by the majority's contrary position.  Not entirely based on stare decisis.  (Though that factors into it.)  But also because barring an appeal would preclude an evaluation of the case on the merits -- a generally unfavorable result -- and would require the court to decide the uncertain line between barred and unbarred cases.  I'm sympathetic to barring the appeal here, for example, because the corporation knew it was suspended during the trial but still didn't pay its taxes for a long time; e.g., until after the period to appeal had expired.  But what if a corporation was suspended (or only found out it was suspended) the day before the notice of appeal was due?  Seems harsh to hold that revivor is precluded in those settings.  Especially since we do nothing at all like that in the trial court, in which revivor is pretty much routinely applied and retroactively validates the entirety of the corporation's appearance.

So I can see Justice Kennard's point.  But I'd have signed onto the majority opinion.