[J-51-2020] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 30 EAP 2019
:
Appellee : Appeal from the Judgment of
: Superior Court entered on March 5,
: 2019 at No. 3246 EDA 2017
v. : affirming the Judgment of Sentence
: entered on September 12, 2017 in
: the Court of Common Pleas,
KEITH ALEXANDER, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0005971-
Appellant : 2016.
:
: SUBMITTED: April 28, 2020
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: December 22, 2020
“What we can decide, we can undecide.” Kimble v. Marvel Entm’t, LLC, 576 U.S.
446, 465 (2015). This much is clear. But whether we should undo a given precedent is
a different matter entirely, and “stare decisis teaches that we should exercise that
authority sparingly.” Id. In that spirit, “we have recognized that changing course demands
a special justification — over and above the belief that [a] precedent was wrongly
decided[.]” Commonwealth v. Reid, 235 A.3d 1124, 1168 (Pa. 2020). Because I believe
the majority does not identify a special justification for overruling Commonwealth v. Gary,
91 A.3d 102 (Pa. 2014) (plurality), wherein a majority of this Court adopted the federal
automobile exception to the warrant requirement, I respectfully dissent.
Stare decisis, which means “to stand by things decided,” is the legal term for fidelity
to precedent. BLACK’S LAW DICTIONARY 1696 (11th ed. 2019). Fidelity to precedent is “a
foundation stone of the rule of law,” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782,
798 (2014), a principle of policy necessary “to avoid an arbitrary discretion in the courts.”
THE FEDERALIST NO. 78, p. 529 (J. Cooke ed. 1961) (A. Hamilton). See, e.g., June Medical
Services L.L.C. v. Russo, ___ U.S. ___, 140 S.Ct. 2103, 2134 (2020) (Roberts, C.J.,
concurring) (“The constraint of precedent distinguishes the judicial method and
philosophy from those of the political and legislative process.”) (internal quotations and
citation omitted). We have emphasized that we honor the stare decisis doctrine in this
Commonwealth to ensure “evenhanded, predictable, and consistent development of legal
principles, foster[ ] reliance on judicial decisions, and contribute[ ] to the actual and
perceived integrity of the judicial process.” Stilp v. Commonwealth, 905 A.2d 918, 954
n.31 (Pa. 2006) (internal quotations and citation omitted); accord Payne v. Tennessee,
501 U.S. 808, 827 (1991). The doctrine, from a pragmatic standpoint, is “the means by
which we ensure that the law will not merely change erratically, but will develop in a
principled and intelligible fashion.” Vasquez v. Hillery, 474 U.S. 254, 265 (1986).
“Of course, it is also important to be right, especially on constitutional matters,”
where the legislature cannot fix our errors through ordinary legislation. Gamble v. United
States, ___ U.S. ___, 139 S.Ct. 1960, 1969 (2019); see Agostini v. Felton, 521 U.S. 203,
235 (1997) (the need to adhere to stare decisis “is at its weakest when we interpret the
Constitution because our interpretation can be altered only by constitutional amendment
or by overruling our prior decisions”). It is for precisely this reason that we have oft stated
that stare decisis “is not an inexorable command to be followed blindly when such
adherence leads to perpetuating error.” Stilp, 905 A.2d at 967. Still, even in constitutional
cases, it is settled that a departure from precedent “demands special justification.”
Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Among the appropriate factors to consider
when assessing whether the scales tip in favor of overruling precedent are the
“workability” of the existing standard, “the antiquity of the precedent, the reliance interests
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at stake, and . . . whether the decision was well reasoned.” Montego v. Louisiana, 556
U.S. 778, 792-93 (2009). But, again, and critically, “an argument that we got something
wrong — even a good argument to that effect — cannot by itself justify scrapping settled
precedent.” Kimble, 576 U.S. at 455; see id. (“The doctrine rests on the idea, as Justice
Brandeis famously wrote, that it is usually more important that the applicable rule of law
be settled than that it be settled right.”) (internal quotation and citation omitted); see also
Knick v. Twp. of Scott, ___ U.S. ___, 139 S.Ct. 2162, 2190 (2019) (Kagan, J., dissenting)
(“[T]he entire idea of stare decisis is that judges do not get to reverse a decision just
because they never liked it in the first instance. Once again, they need a reason other
than the idea that the precedent was wrongly decided.”) (internal quotations and citation
omitted; emphasis in original).
In my respectful view, the majority’s reasons for jettisoning Gary reduce to little
more than an ardent and sincere belief that it was wrongly decided, both on its own terms
and in light of prior precedent. For my own part, I actually share those beliefs to a
significant degree, as I have serious misgivings about the federal automobile exception’s
compatibility with Article 1, Section 8 of the Pennsylvania Constitution, for all the reasons
Justice Todd explained in her persuasive dissent in Gary. My deeper concern, however,
is that the Gary Court expressly rejected that dissenting position, notwithstanding its
persuasiveness or merit — a fact the majority here concedes. See Majority Opinion at
38 (“the Commonwealth is correct that the Gary plurality could have accepted Justice
Todd’s cogent analysis”). Even now, Chief Justice Saylor, the lone remaining member of
the Gary majority on this Court, opposes overruling that decision, for which he provided
the pivotal fourth vote. See Dissenting Opinion (Saylor, C.J.) at 1.1 So too does Justice
1 The majority asserts my position is wrongly premised on the “fiction” that the Gary Court
settled the instant issue, see Majority Opinion at 41 n.12, and even goes so far as to claim
it simply decides “the question that Gary left open.” Id. at 38. Curiously, though, appellant
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Mundy. See Dissenting Opinion (Mundy, J.) at 1. And I imagine there are many other
members of the bench and bar who similarly believe Gary was correctly decided; surely
the Commonwealth falls into that camp. This reality, that there are reasonable arguments
for and against keeping Gary on the books, strongly militates in favor of restraint. See
Franchise Tax Bd. of California v. Hyatt, ___ U.S. ___, 139 S.Ct. 1485, 1505 (2019)
(Breyer, J., dissenting) (“While reasonable jurists might disagree about whether [a
decision] was correct, that very fact — that [the decision] is not obviously wrong — shows
does not seem to share this novel interpretation of Gary, as he has never once in this
litigation argued that Gary failed to resolve the constitutional question involved.
Presumably, this is because it is plain (or at least it was) that “then-Justice Saylor’s
concurrence espoused the prevailing viewpoint offered by the three other Justices”
comprising the Gary plurality. Dissenting Opinion (Mundy, J.) at 2. In this regard, I share
Justice Mundy’s belief that the majority’s suggestion that then-Justice Saylor joined the
lead Justices in Gary in adopting the federal automobile exception even though he
actually believed it violated our state charter, is beyond implausible. See id. (observing
then-Justice Saylor’s concurrence “did not offer [ ] an alternative basis pursuant to which
this Court should resolve the underlying issues” and concluding the majority here
“subverts the clear meaning of the majority of Justices who considered and decided
Gary”). In any event, I reiterate appellant forwards no argument that the constitutional
issue has not been settled; on the contrary, “he just does not care for the solution that
Gary supplied.” Commonwealth’s Brief at 17. See, e.g., Appellant’s Reply Brief at 9
(“Gary should be overruled because it was wrong when it was decided and it is wrong
now.”).
Moreover, even if the majority was right that Gary did not resolve the matter entirely, then
this point would serve only to remove any lingering doubt that appellant’s current claim is
waived since he did not advance any argument in the trial court for interpreting Article I,
Section 8 more expansively than its federal counterpart, let alone argue the lower courts
should decide any issue that Gary supposedly left open. See infra n.4. So either Gary
left open a constitutional question, in which case appellant surely waived that unresolved
issue by not raising it below, or Gary did not leave open a constitutional question, in which
case the majority’s own asserted basis for dispensing with stare decisis crumbles. Cf.
Majority Opinion at 41 n.12 (“Had this Court definitively settled whether Article I, Section
8 is compatible with the federal automobile exception, Justice Dougherty’s Dissent aptly
explains why that hypothetical decision, even if we believed it to be wrong, should remain
on the books.”). This conflict is irreconcilable, and the majority’s refusal to even
acknowledge this dispositive point, much less come to terms with it, is both unfortunate
and telling.
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that today’s majority is obviously wrong to overrule it.”); see also Kimble, 576 U.S. at 455
(“Respecting stare decisis means sticking to some wrong decisions.”).
Notably, aside from its many attacks on the Gary plurality’s reasoning, the majority
is otherwise unable to point to any significant change since Gary was decided, and it
foregoes any meaningful weighing of the traditional factors this Court should consider
when making the difficult decision whether to cast aside one of our precedents.2 See,
e.g., Montego, 556 U.S. at 792-93. In this respect, I would ascribe considerably more
force to the Commonwealth’s discussion of workability and reliance interests engendered
by Gary than the majority does. Compare Commonwealth’s Brief at 16-18 (arguing
adherence to Gary “is particularly appropriate” because the decision “brought clarity and
predictability to a frequently litigated area of the law” and “provided clear guidance to
police, the public, and trial courts, and significantly reduced litigation”) and Appellant’s
Reply Brief at 9 (acknowledging one result of the rule adopted in Gary is “greater clarity
and less litigation”) with Majority Opinion at 35 (rejecting the Commonwealth’s supposed
“attempt to insulate Gary from review solely because it produced a workable outcome”).3
2 While it is true the majority briefly recounts the Commonwealth’s arguments for adhering
to stare decisis, it quickly discards those arguments by asserting they “presume[ ] that we
are free to ignore the Pennsylvania Constitution simply because it makes law
enforcement more difficult, or, worse, that we are to determine the law based on what we
think is good for law and order in society.” Majority Opinion at 35. See also id. (“We are
not a policy branch, and we cannot ignore constitutional commands even if they make the
work of police or prosecutors harder.”). These statements seem to imply that no
comparative balancing or weighing of the various stare decisis factors is necessary when
a majority of a later Court determines a decision rendered by a prior Court incorrectly
interpreted the Constitution. However, at least from my point of view, this explanation is
just a more artful way of saying the precedent was wrongly decided.
3 Parenthetically, I note again that Gary was decided only six years ago. In the past, we
have actually weighted a precedent’s recent vintage as a factor in favor of honoring stare
decisis. See, e.g., Commonwealth v. Le, 208 A.3d 960, 976 n.17 (Pa. 2019) (declining
to overrule Commonwealth v. Smith, 131 A.3d 467 (Pa. 2015), where it “was decided less
than five years ago, and [nothing] suggests that our experience . . . has revealed it to be
unworkable, or that the decision is otherwise infirm”) (emphasis added). It makes little
[J-51-2020] [MO: Donohue, J.] - 5
In sum, despite the majority’s best efforts to find and articulate some special justification
that would warrant overruling Gary, I respectfully conclude that its search has come up
short.
As one jurist has wisely explained, any time a court overrules a precedent in the
absence of a special justification for doing so, it runs the risk of signifying that later-elected
judges are merely interested in seizing opportunities to throw out cases they believe were
wrongly decided by earlier-elected judges. See Hyatt, 139 S.Ct. at 1506 (Breyer, J.,
dissenting) (“It is one thing to overrule a case when it defies practical workability, when
related principles of law have so far developed as to have left the old rule no more than
a remnant of abandoned doctrine, or when facts have so changed, or come to be seen
so differently, as to have robbed the old rule of significant application or justification. It is
far more dangerous to overrule a decision only because [a majority] of a later Court come
to agree with earlier dissenters on a difficult legal question.”) (internal quotations,
brackets, and citation omitted); see also Dissenting Opinion (Mundy, J.) at 3 (“When we
become untethered from our previous decisions, we instantly implicate this [C]ourt’s
credibility and our ability to effectively adjudicate the many types of cases upon which
litigants look to us for guidance.”). On this point, I agree with the Commonwealth that “[i]t
is precisely in such circumstances that stare decisis is of maximum value for, in the words
of Justice Thurgood Marshall, that ‘doctrine permits society to presume that bedrock
principles are founded in the law rather than in the proclivities of individuals, and thereby
contributes to the integrity of our constitutional system of government, both in appearance
and in fact.’” Commonwealth’s Brief at 22-23, quoting Hillery, 474 U.S. at 265-66.
sense to me to conclude Gary’s “young” age somehow counts as a strike against
preserving it, when the age of the five-year-old decision in Smith did not.
[J-51-2020] [MO: Donohue, J.] - 6
I acknowledge, of course, that it is inevitable that judges of good faith weighing
and applying the various stare decisis factors will sometimes disagree about when to
overrule an erroneous constitutional precedent. See Ramos v. Louisiana, ___ U.S. ___,
140 S.Ct. 1390, 1415-16 (2020) (Kavanaugh, J., concurring) (“even when judges agree
that a prior decision is wrong, they may disagree about whether the decision is so
egregiously wrong as to justify an overruling”). But when a special justification for reversal
is noticeably lacking, as I conclude it is here, then we can hardly fault the Commonwealth
for saying what many, if not most, might reflexively think: that the majority has simply
“surrendered to the temptation to overrule” Gary even though it was a well-reasoned
decision that has caused no serious practical problems in the six years since we decided
it. Hyatt, 139 S.Ct. at 1506 (Breyer, J., dissenting).4
4 Even if I agreed with the majority’s take on stare decisis, I still would be compelled to
dissent from its disposition, as I believe the conclusion that appellant has not waived the
present issue pursuant to our recent decision in Commonwealth v. Bishop, 217 A.3d 833
(Pa. 2019), is plainly incorrect. In Bishop, we explained in no uncertain terms that a
defendant must “assert in the trial court that the state constitutional provision at issue
should be interpreted more expansively than the federal counterpart and provide reasons
for interpreting the state provision differently from the federal provision.” Id. at 840
(emphasis in original). Here, appellant never argued to the trial court that Article I, Section
8 should be read to require exigency, much less did he articulate any reasons to modify
this Court’s holding in Gary — two points the majority candidly admits. See Majority
Opinion at 26 n.8 (appellant’s “actual argument to the [trial] court did not touch on an
argument that Gary should be overruled”). This fact alone should resolve this case. See
Bishop, 217 A.3d at 840; Pa.R.A.P. 302(a). That it for some unexplained reason does
not, and that the majority so cavalierly discards our clear and recent instructions in Bishop,
only lends further credence to the Commonwealth’s view that the majority appears more
intent on remedying what it views to be an erroneous precedent rather than applying
longstanding principles of law, including stare decisis and waiver. See Commonwealth’s
Brief at 22 (observing that the only thing of importance that has changed in the six years
since Gary was handed down is “the membership of this Court”).
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