En Banc Hearings, By the Numbers
In 2019, Florida’s five appellate courts collectively issued 12,208 opinions.[1] In past years, Florida’s appellate courts have collectively issued up to 26,800 cases with a recent yearly average being close to 24,700 cases.[2] The Second District Court of Appeal has 16 judges, which means that 560 different three-judge panels are possible. The First District Court of Appeal has 15 judges, which means that 455 different three-judge panels are possible.[3] The Fourth District Court of Appeal has 12 judges, which means 220 different three-judge panels are possible.[4] The Fifth District Court of Appeal has 11 judges, which means that 165 different three-judge panels are possible. Even the Third District Court of Appeal with only 10 judges may have 120 different three-judge panels. Since 1982, Florida’s appellate courts have collectively issued 492 en banc opinions,[5] which means Florida’s appellate courts have only issued, on average, 13 en banc opinions per year.[6] Why is that the case? This article explains why.
Federal En Banc History
In 1941, the U.S. Supreme Court addressed the issue of whether en banc panels were allowed in the federal circuit courts. The problem was that the federal statutes provided that “each circuit court of appeals shall consist of three judges, of whom two shall constitute a quorum.” This collided with the fact that Congress had allowed some federal circuit courts to have more than three judges. The U.S. Supreme Court believed that since the federal circuit courts were supposed to be “courts of last resort in the run of ordinary cases” that conflicts within a circuit should be avoided. In order to avoid such conflicts, the U.S. Supreme Court held that a federal circuit court of appeals could sit en banc.[7] The process for federal en banc decisions was incorporated into Rule 3.5 of the Federal Rules of Appellate Procedure in 1979.
Florida En Banc History
Like the federal statutes, the Florida Constitution also created three-judge courts of appeal.[8] Like the federal system, Florida’s appellate courts expanded beyond three members. In light of the new Federal Rules of Appellate Procedure that were being enacted in 1979, the Florida Supreme Court established a commission to make recommendations regarding Florida’s Rules of Appellate Procedure.[9] The commission recommended a rule that would allow intra-district conflicts to be resolved by district courts of appeal sitting en banc.[10] In response to that recommendation, in 1979 the Florida Supreme Court adopted Fla. R. App. P. 9.331.[11] As originally adopted, the only ground for an en banc proceeding was “to maintain uniformity in the court’s decisions.” The rule was later amended to allow for en banc proceedings for cases of “exceptional importance.”[12]
Procedure
In the district courts of appeal, any judge may request a vote to determine whether there will be an en banc hearing and a party may file a motion for an en banc rehearing. The chief judge conducts a vote, and if a majority of the judges vote in favor of proceeding en banc, then a judge in the majority will author an opinion, which is circulated. In the event of a tie, the decision of the original panel shall stand.[13]
In the First District, upon request by one-third or more of the judges, the court will schedule further oral arguments or order supplemental briefs.[14] Due to the logistical difficulties, it is the policy of the Second District to not conduct oral arguments for en banc proceedings.[15] The Third District may require additional briefs or require additional argument.[16] In the Fourth District, oral argument may be scheduled.[17] In the Fifth District, any judge may request oral argument.[18]
If you do get an appellate court to grant en banc review, the court can always change its mind and remove the case from en banc review.[19]
Reasons for So Few En Banc Opinions
There are several reasons why there are very few en banc opinions. Generally, it comes down to which decisions are going to be reviewed en banc based on the differing views of the judge regarding the function of the court in its en banc capacity.
First, each district court of appeal issues a large number of per curiam affirmed opinions. In 2019, Florida’s five appellate courts collectively issued 8,169 per curiam affirmed opinions, which was approximately 67% of all opinions issued that year.[20] Since these cases have no precedential value, some judges believe that such cases do not give rise to en banc proceedings.[21]
Second, all opinions are circulated among all of the judges in that district before being released to the public.[22] This allows judges who are concerned about an opinion to discuss it with the author and perhaps have the opinion changed before it is released in order to avoid a possible conflict.
Third, there are those judges who argue that since Florida’s appellate courts were enacted by Florida’s constitution rather than by statute, all en banc proceedings are unconstitutional.[23] These judges will probably always vote against any en banc hearing. As Justice Boyd stated, “The power of the district courts of appeal and the jurisdiction of the supreme court are governed by the Florida Constitution….Because the Constitution specifically provides that three judges shall consider each case heard by the district courts, a different procedure cannot be authorized by the promulgation of a court rule.”[24]
Fourth, many judges believe that they should not vote for an en banc review merely because they disagree with the decision reached by the three-judge panel.[25] As Judge Tanenbaum wrote in quoting from Judge Wilson, “Disagreement with the panel opinion in a given case is simply insufficient to merit en banc review.”[26] As another judge stated, “an oft-heard comment against uniformity review is: ‘If I were on the panel, I’d decide the case differently, but it is not en-banc-worthy.’”[27]
Fifth, the committee notes to Rule 9.331 state that “en banc proceedings are extraordinary.” Many judges believe that in order to be an extraordinary case meriting en banc treatment, the case must involve issues that are likely to affect many other cases — not just the case at hand.[28] As Judge Rowe wrote:
Only a few select cases will ever meet this threshold…. Cases have been deemed exceptionally important when the original panel decision conflicted with a rule of law announced by the supreme court or another district court, when the case was important to the jurisprudence of the state as a judicial precedent, or when the decision impacted a large share of the community.[29]
Sixth, there are judges who believe that en banc proceedings are not favored because they put a strain on an already overburdened court.[30] As Judge Ervin wrote in quoting from Judge Kaufman, “Extension of the en banc rehearing procedure in an era of increasingly congested dockets is an extravagance we simply cannot afford…. In practice en bancs are time-consuming and cumbersome, and only rarely produce dispositive resolution of major, recurring issues.”[31]
With all the reasons lined up against granting en banc review, one can see why there are so few en banc opinions.
Conclusion
Florida’s appellate court system is set up according to a belief that en banc proceedings should be few and far between. The court’s statistics show that the appellate courts adhere to this belief. Appellate attorneys and their clients should be aware of this view so that they do not have unrealistic expectations of obtaining en banc review. It does not appear to make any difference whether the case involves a criminal issue or a civil issue. Approximately 47% of the en banc cases have dealt with criminal issues. Approximately 53% of the en banc cases have dealt with civil issues. On the civil side, less than 1% of the cases addressed family law issues. As a practical matter, if you do choose to seek en banc review, be sure to cite cases within your motion that provide a proper basis for that motion or you could find yourself having to explain to the court why you have filed a frivolous motion.[32]
[1] Florida Office of the State Courts Administrator Annual Reports, www.flcourts.gov.
[2] Id.
[3] Mitchell v. Brogden, 249 So. 3d 781 (Fla. 1st DCA 2018) (Makar, J., dissenting).
[4] Chase Federal Savings & Loan Ass’n v. Schreiber, 479 So. 2d 90 (Fla. 1985).
[5] Florida Office of the State Courts Administrator as of November 2020.
[6] For a comprehensive list of Florida’s appellate courts en banc opinions from 1982 through 2020, see William D. Slicker P.A., En Banc Decisions in Florida Courts, www.slickerlaw.com/en-banc/.
[7] Textile Mills Securities Corp. v. Comm’r of Internal Revenue, 314 U.S. 326, 335 (1941).
[8] Fla. Const. art. V.
[9] In re Rule 9.331, Determination of Causes By a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So. 2d 1127 (Fla. 1982).
[10] Report of the Supreme Court Commission on the Florida Appellate Structure, 53 Fla. B. J. 274 (1979).
[11] In re Rule 9.331, Determination of Causes By a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So. 2d 992 (Fla. 1979), modified by 377 So. 2d 700 (Fla. 1979), and further modified by 416 So. 2d 1127 (Fla. 1982).
[12] The Florida Bar Re: Rules of Appellate Procedure, 463 So. 2d 1114 (Fla. 1984).
[13] Fla. R. App. P. 9.331.
[14] Florida First District Court of Appeal, Internal Operating Procedure 6.9.
[15] Florida Second District Court of Appeal, Internal Operating Procedure 6.9.
[16] Florida Third District Court of Appeal Rule 9.331.
[17] Florida Fourth District Court of Appeal, Internal Operating Procedure 11.4.
[18] Florida Fifth District Court of Appeal, Internal Operating Procedure 6.C.
[19] Fleischer v. Hi-Rise Homes, Inc., 536 So. 2d 1101 (Fla. 4th DCA 1988); Agudo Pineiro & Kates v. Harbert Const., 476 So. 2d 1311 (Fla. 3d DCA 1985); Frazier v. State, 467 So. 2d 447 (Fla. 3d DCA 1985).
[20] Emails from Florida’s Office of the State Courts Administrator to the author.
[21] See State v. Georgoudiou, 560 So. 2d 1241, 1248 (Fla. 5th DCA 1990) (Cowart, J., dissenting).
[22] See State v. Petagine, 290 So. 3d 1106, 1112 (Fla. 1st DCA 2020) (Tanenbaum, J., concurring).
[23] See In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So. 2d 992, 995 (Fla. 1979) (Boyd, J., dissenting); Petagine, 290 So. 3d at 1109 (Tanenbaum, J., dissenting); Georgoudiou, 560 So. 2d at 1247 (Cowart, J., dissenting); Shrader v. State, 278 So. 3d 270, 292 (Fla. 2d DCA 2019) (Northcutt, J., dissenting).
[24] In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So. 2d at 992.
[25] Petagine, 290 So. 3d at 1112 (Tanenbaum, J., dissenting); Marr v. State, 470 So. 2d 703, 716 (Fla. 1st DCA 1985) (Ervin, J., dissenting), quoting Gilliard v. Oswald, 312 F. 2d 359 (2d Cir. 1977) (Kaufman, J., dissenting); Shrader, 278 So. 3d at 294.
[26] Petagine, 290 So. 3d at 1112.
[27] Mitchell, 249 So. 3d at 785 (Makar, J., dissenting); Wallace, What Makes a Case or an Issue One of Exceptional Importance? 89 Fla. B. J. 5, 28 (May 2015).
[28] Univ. of Miami v. Wilson, 948 So. 2d 774, 788 (Fla. 3d DCA 2006) (Shepherd, J., concurring); In re Doe 13-A, 136 So. 3d 748, 753 (Fla. 1st DCA 2014) (Rowe, J., dissenting); Morris v. State, 789 So. 2d 1032, 1038 (Fla. 1st DCA 2001) (Browning J., dissenting); Marr, 470 So. 2d at 716 (Ervin, J., dissenting). Wallace, What Makes a Case or an Issue One of Exceptional Importance? at 28.
[29] In Re: Doe 13-A, 136 So. 3d at 753.
[30] Marr, 470 So. 2d at 716 (Ervin, J., dissenting).
[31] Id.
[32] Jedak Corp. v. Seabreeze Office Assocs., LLC., 248 So. 3d 242 (Fla. 5th DCA 2018); Goday v. State, 99 So. 3d 613 (Fla. 5th DCA 2012); Banderas v. Advanced Petroleum, Inc., 716 So. 2d 876 (Fla. 3d DCA 1998).
William D. Slicker served as a law clerk to Judge Steven H. Grimes at Florida’s Second District Court of Appeal and as a law clerk to Judge Warren H. Cobb at Florida’s Fifth District Court of Appeal. He has received The Florida Bar President’s Pro Bono Service Award for the Sixth Circuit, the Ms. JD Incredible Men Award, the St. Petersburg Bar Foundation’s Heroes Among Us Award, the Community Law Program Volunteer of the Year Award, and the Florida Coalition Against Domestic Violence Lighting the Way Award.
The author thanks paralegal Amanda Jordan who compiled the list of approximately 400 cases that are set out in the link in endnote 6.
This column is submitted on behalf of the Appellate Practice Section, Christopher Dale Donovan, chair, and Heather Kolinsky, editor.
