Suppose the Supreme Court of North Carolina jettisoned In re Civil Penalty—the case requiring panels of the Court of Appeals to treat earlier Court of Appeals panel opinions as binding precedent. What system would take its place?

This is no mere hypothetical. As my colleague Morgan Reece pointed out last week, at least one Justice on our Supreme Court has expressed an openness to trying something different than our current system of horizonal stare decisis within our intermediate appellate court.

As it turns out, jurisdictions across the country have come up with a menu of options from which to choose. Let’s embark on a brief tour of those options, starting with maximal horizontal stare decisis and sliding down from there.

Maximal Horizontal Stare Decisis

This is the current system in North Carolina. “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.” In re Civil Penalty, 324 N.C. 373 (1989).

As usual, the devil’s in the details. As Beth and I note in the treatise, there are at least six exceptions. See North Carolina Appellate Practice & Procedure, § 16.05[2][c]. For instance, a panel of the Court of Appeals may contradict the decision of an earlier panel if the first panel failed to account for a controlling decision of the Supreme Court of North Carolina. See, e.g., Crawford v. Commercial Union Midwest Ins. Co., 147 N.C. App. 455, 458–59 (2001) (declining to follow five-year-old published Court of Appeals opinion because that panel failed to consider a hundred-year-old Supreme Court opinion on point), aff’d, 356 N.C. 609 (2002).

Absent an exception, however, a Court of Appeals panel is stuck with the decision of an earlier sister panel. To overcome it, a party must seek en banc review by the full Court of Appeals or petition the Supreme Court for discretionary review.

Many other jurisdictions have some version of this maximalist stance. The Fourth Circuit is one of them. See, e.g., Payne v. Taslimi, 998 F.3d 648 (4th Cir. 2021).

Geographically-Limited Horizontal Stare Decisis

The intermediate appellate courts in some states are subdivided into smaller geographic regions, with the reach of horizontal stare decisis limited to intra-regional conflicts.

Take Ohio, for instance. Ohio’s constitution divides the state into twelve appellate districts. Ohio Const. art. IV, § 3. A Court of Appeals panel convening in one appellate district generally should follow precedential decisions of earlier panels within that district. Decisions from other districts of the Court of Appeals, however, are merely persuasive authority.

Horizontal Stare Decisis, Subject to Challenge by Future Panels

Many jurisdictions—perhaps a majority—have established procedures allowing empaneled appellate judges to challenge prior precedent.

These procedures fall into a couple of sub-categories, with subtle but important differences.

• En Banc Silence Allows a Panel to Overrule Prior Precedent

Some jurisdictions allow a panel to draft an opinion that conflicts with prior precedent and circulate it to the full en banc court. Unless a majority of the en banc court votes to hear the case, the panel is free to publish its opinion.

The Seventh Circuit works this way. Seventh Cir. Rule 40(e). If the en banc court doesn’t intervene, a panel of the court can expressly overrule a prior decision of another panel of the court.

• An En Banc Hearing Allows a Panel to Overrule Prior Precedent

In other jurisdictions, however, a panel’s circulated opinion conflicting with prior precedent may not be published unless and until the en banc court hears it. This is the rule in the Virginia Court of Appeals, for instance. Va. Code § 17.1-402(D).

• A Special Hearing or En Banc Hearing Allows a Panel to Overrule Prior Precedent

In still other jurisdictions, a panel may not draft an opinion contradicting an earlier decision, but may invoke special procedures to seek en banc review.

Take Michigan, for instance. As in North Carolina, a panel must follow published decisions of earlier panels. MCR Rule 7.215(J)(1). But a panel that disagrees with the prior panel may invoke Rule 7.215(J)(2) in its opinion, which in turn triggers a vote as to whether to convene a “special panel” of seven Court of Appeals judges to resolve the difference in opinion. MCR Rule 7.215(J)(3).

No Horizontal Stare Decisis

California’s intermediate appellate courts have no horizonal stare decisis. In re Marriage of Shaban, 88 Cal. App. 4th 398, 409, 105 Cal. Rptr. 2d 863, 870 (2001), as modified on denial of reh’g (May 9, 2001). There’s a whole law review article analyzing that system and its benefits and drawbacks. Michael J. Shipley, Horizonal Stare Decisis in the California Courts of Appeal: Law, History, and Reform, 59 Univ. of San Francisco Law Review at 291 (2025).

Next Steps for North Carolina

Our Supreme Court has wide authority to modify rules of decision like that enshrined in In re Civil Penalty. It also has plenary authority to modify the Appellate Rules.

Short of sweeping changes, there are some modest tweaks that might be useful to consider. Take another look at our en banc rule, for example. Under Rule 31.1(a), a panel that wants to overcome an earlier ruling may itself call for an en banc vote. The rule does not explain how that would work, practically. But the rule does allow the judges to initiate such an en banc proceeding sua sponte, without a motion of a party.

What would happen if our Court of Appeals judges invoked that rule more often? A panel could, for instance, call for an en banc hearing as soon as it becomes clear that a prior panel’s ruling with which it disagrees is dispositive of the case at hand.

Or, maybe our Supreme Court could flesh out the procedures governing panels that wish to challenge prior panel rulings. Appellate Rule 31.1 would be a natural place to memorialize those procedures. And a review of the jurisdictions mentioned above shows that there are all kinds of written approaches to such procedures.

What do you think should happen next? What do you think will happen next? Will this idea remain hot? Or will it cool off?

-Matt Leerberg

EBS Note: This is a fascinating topic. Here’s a post where everyone can chime in with comments.