Is the PCA Constitutional?
“PER CURIAM. Affirmed.” We all know what this is: the infamous PCA, or a district court of appeal’s decision without written opinion. The district courts resolve most cases with PCAs. Lawyers have complained about them for decades. For just as long, judges have vociferously defended their use. My goal isn’t to retread this ground. Instead, it is to address an underexamined issue: their constitutionality. True, Florida courts have stated that litigants do not have a constitutional right to a written opinion.[1] But these statements are unsupported by analysis. This fact, together with the Florida Supreme Court’s adoption of public meaning originalism (PMO), leads me to believe the issue deserves a fresh look. The court recently explained PMO:
The goal of this approach is to ascertain the original, public meaning of a constitutional provision…. In construing the meaning of a constitutional provision,…we ask how the public would have understood the meaning of the text in its full context when the voters ratified it.
To answer this question of public meaning, we consider the text, contextual clues, dictionaries, canons of construction, and historical sources, including evidence related to public discussion.[2]
Applying PMO, this article explores whether the meaning of “a decision” in the following constitutional provision includes a written, i.e., reasoned, opinion: “Three judges shall consider each case and the concurrence of two shall be necessary to a decision.”[3] If yes, then the district courts might be constitutionally required to issue written opinions in every case. I won’t offer a definitive answer, but there should be some doubt.
History of the Provision, and One Other
In its judicial context, the word “decision” first entered the Florida Constitution in 1885, in art. V, §4, pertaining to the Supreme Court: “The concurrence of two [j]ustices shall be necessary to a decision.”[4] The journal of the proceedings does not indicate the convention discussed this language.[5]
In 1956, the Florida Constitution was amended to create the district courts, transferring the Supreme Court’s appellate jurisdiction to them, and initiating a series of changes limiting the Supreme Court’s jurisdiction.[6] The new section governing the district courts provided, in part, that “the concurrence of a majority of the panel shall be necessary to a decision,”[7] thus, repeating the language from the original 1885 constitution’s Supreme Court provision. The language of the 1956 amendment, indeed the entire judiciary article, was carried over into the 1968 constitution.[8]
There was another amendment to the 1885 constitution that is relevant. Originally, §6 of art. XVI provided: “No judgment of the Supreme Court shall take effect until the opinion of the Court in such case shall be filed with the Clerk of said Court.”[9] This was amended in 1896 to replace “opinion” with “decision.”[10] Early the next year, the chief justice said this amendment meant the court no longer had to write opinions in every case.[11] That seems like a strained interpretation considering the provision’s context (not in the judiciary article) as well as the provision’s purpose (to fix when the court’s decisions were binding). There had long been complaints, however, about how long it took the court to decide cases.[12] I haven’t found something explicitly connecting the proposal of the amendment to addressing this problem before its approval, and there are indications the proposal wasn’t presented to the public this way.[13] More research needs to be conducted on this point.
Although drafting history is problematic, it is worth noting that, as introduced in the Florida House of Representatives, the proposed amendment would have included this additional sentence: “Provided, judgments and decrees may, in the exercise of the sound discretion of the Justices, be affirmed or reversed without written opinions.”[14] The House Committee on Constitutional Amendments proposed, also unsuccessfully, to strike that proposed language and insert “the [l]egislature may provide by law for the manner of disposing of cases by the Supreme Court, in the matter of filing written opinions.”[15] In 1904, voters defeated a proposal to amend §6 to replace “decision” with “opinion.”[16] Our Supreme Court, however, recently said that subsequent events “offer…little value” when determining original meaning.[17] The provision for the Supreme Court was removed from the constitution altogether and converted to a statute when the 1968 constitution was approved.[18]
All this implicates “interconstitutionalism,” meaning “the interpretive practice of referring to a polity’s antecedent constitution (or constitutions), textually or otherwise, to generate meaning for the same polity’s current constitution.”[19] There is evidence the Florida Supreme Court employs this practice,[20] but those are pre-2019 decisions and may be difficult to reconcile with PMO.[21]
Contextual Clues
“Decision” also appears in art. V, §3, of the constitution, which governs the Supreme Court. Like the provision governing the district courts, the section provides: “The concurrence of four justices shall be necessary to a decision.”[22] The other uses are in the subsection about the Supreme Court’s jurisdiction.[23] For example, the Supreme Court:
May review any decision of a district court of appeal that expressly declares valid a state statute, or that expressly construes a provision of the state or federal constitution, or that expressly affects a class of constitutional or state officers, or that expressly and directly conflicts with a decision of another district court of appeal or of the Supreme Court on the same question of law.[24]
In 1958, the Supreme Court interpreted “decision” in the predecessor provision in the 1885 constitution, as amended in 1956, and said:
While by a ‘decision’ of a court is generally meant the judgment, and not the ‘opinion’, which represents merely the reasons for that judgment, we are of the view that as the term is used in the constitutional provision under consideration ‘decision’ comprehends both the opinion and judgment.[25]
While this supports the position that district courts must issue written opinions, it doesn’t tell us much given the different contexts. Yet, it also does not foreclose the possibility that “decision” in art. V, §4(a), includes written opinion.
More relevant are references to “written opinion.” When the governor requests an advisory opinion from the Supreme Court, the justices “shall render their written opinion.”[26] There is one other provision with similar language; the court must issue a “written opinion” on the validity of an initiative petition.[27]
The consistent and varied usage of terms implicates the “presumption of consistent usage” canon of construction: “A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.”[28] This canon is weak, however: “Because it is so often disregarded, this canon is particularly defeasible by context.”[29] The consistency and variation in terms don’t tell us much because of the different contexts in which the terms are used.
Dictionary Definitions
Noah Webster’s abridged A Compendious Dictionary of the English Language (1806) doesn’t contain a useful definition of “decision” but does for “judgment” — “a sentence, decision, opinion, skill” — and “opinion” — “a notion, sentiment, judgment.”[30] His later, unabridged dictionary from 1828 contains a useful definition of “decision” (“Report of the opinions and determinations of any tribunal. We say, read the decisions of the Court of the King’s Bench.”)[31] but not “judgment” or “opinion.” Definitions from other dictionaries, “lay”[32] and “law,”[33] contain either similar definitions showing that decision, judgment, and opinion were used interchangeably, or definitions attempting to distinguish these terms, the effort suggesting that people used them interchangeably.
In the 20th century, one may detect a more careful delineation of the meanings of these terms. The 1933 Oxford English Dictionary defined “decision” as “a conclusion, judgment: esp. one formally pronounced in a court of law;”[34] “judgment” as “[t]he sentence of a court of justice; a judicial decision or order in court;”[35] and “opinion” as “[t]he formal statement [of someone] of what he [or she] thinks, judges, or advices upon a question or matter submitted to and considered by him [or her].”[36] Similarly, the American Heritage Dictionary of the English Language defined “decision” as “[a] conclusion or judgment reached or pronounced;” “judgment” as “[a] determination of a court of law; a judicial decision;” and “opinion” as “[a] formal statement by a judge or jury of the legal reasons and principles for the conclusions of the court.”[37]
Twentieth-century law dictionaries continued to acknowledge that the terms were used interchangeably, however. The definitions in later editions of Black’s Law Dictionary were basically identical to those in the first edition.[38] As before, while drawing distinctions,[39] the book still said: “The term ‘judgment’ is also used to denote the reason which the court gives for its decision; but this is more properly denominated an ‘opinion.’”[40] Similarly, but unlike its earlier edition, the 1914 edition of Bouvier’s Law Dictionary stated, regarding decision: “This word is variously defined. It is said that the decision of a court is its judgment; its opinion is the reason given therefor or the views of the judge in relation to a certain subject. The two words are sometimes used interchangeably.”[41] About opinion, this edition explains, “The judgment itself is sometimes called an opinion; and sometimes the opinion is spoken of as the judgment of the court.”[42] Another interesting thing Bouvier’s says is that “[t]he term decision is held to be a popular and not a technical word and to mean little more than a concluded opinion.”[43] The 1968 Black’s acknowledges this point.[44]
My reading is that, at all potentially relevant times, the plain and ordinary meaning of “decision,” as opposed to the technical meaning, included written opinion.
History of PCAs
Written opinions are a recent innovation, as are law reports.[45] But importantly, “[t]he idea that American judges ought to produce written opinions was current at the time” of America’s founding.[46] Written opinions appear to have long been a part of Florida legal culture. In 1845, the very first legislature made the attorney general the official reporter of the court’s decisions. The first volume of the decisions, containing over 80 written opinions (no PCAs), came out in 1847.[47] While “judicial power” in the U.S. is said to contemplate judgments, not opinions, as the legally operative act of a court,[48] the written opinion seems to have soon reached parity with the judgment in Florida.[49] Reflecting the idea that judges should produce written opinions, our first legislature also passed a law requiring the justices to file them in every case.[50] In 1848, however, the Supreme Court said in dicta that this law was not mandatory.[51] Yet, the indications are that the court continued to write opinions in every case.[52] Whether the court also issued oral opinions, I cannot tell, though lawyers presented arguments orally at hearings.[53] More research needs to be done on the court’s historical practices in this era.
It wasn’t until 1897, as far as I can tell, that the Supreme Court issued its first PCAs: “PER CURIAM. The decree is affirmed.”[54] As noted above, the court read an 1896 amendment to the constitution as doing away with a supposed written-opinion requirement in the 1885 constitution. Thereafter, the court frequently resorted to PCAs.[55] The use of PCAs was criticized even back in this era. In 1919, a newspaper complained that the court “did not even give a written opinion” in one case.[56] In 1925, the president of the Florida State Bar Association railed against PCAs in his annual address to the association, voicing a “universal disapproval among the bar.”[57] He called the PCA “an innovation in the system of reported cases, though of long standing.” One circuit judge who ran (unsuccessfully) for election to the court in 1952 promised he would explain his reasons in every affirmance: “Per curiam affirmances are obnoxious to me.”[58] In 1957, the three original district courts went live and immediately started employing PCAs.[59] Despite the lengthy practice of courts issuing them, the equally long-running controversy militates against finding that their use constituted a practice that liquidated and settled the meaning of the constitutional text with respect to written opinions.[60] Additionally, as noted above, the Supreme Court does not view subsequent events as relevant to determining original public meaning.[61]
Probably the most significant event is the 1980 constitutional amendment divesting the Supreme Court of jurisdiction to review PCAs and cementing the district courts as the final stop for most cases.[62] While this too could be viewed as a liquidation of the meaning of the constitutional text to include PCAs, again, this subsequent event probably is not relevant to the text’s original meaning. Even so, PCAs have apparently never gone unchallenged, disfavoring liquidation, and “to the extent later history contradicts what the text says, the text controls.”[63]
Regarding the more specific issue, the first time a Florida court appears to have held that parties don’t have a right to a written opinion was the First District in 1970.[64] But this was already after the 1956 amendment creating the district courts, and it concerned a different constitutional issue — the ability to seek Supreme Court review — not a written opinion as an object in itself. In 1985, after all relevant amendments, the Supreme Court said it did not have the authority to compel district courts to write opinions.[65] It wasn’t until 2006 that the court more broadly held that a party does not have a right to a written opinion.[66] It can’t be confidently said that Florida voters adopted these judicial interpretations.[67]
Conclusion
Do the district courts have a constitutional obligation to issue a written decision in each case? The question is simple; the answer isn’t. The text, contextual clues, and canons are not helpful. The most probative evidence is dictionary definitions and historical sources. The dictionaries tell us that the plain and ordinary meaning of “decision” in art. V, §4(a), included written opinion, whereas the technical meaning excluded it. A conflict between popular meaning and technical or acquired meaning is not easily resolved.[68] Then there is the interconstitutionalism issue. Was the meaning of “decision,” in its appellate court context, fixed at the time it first entered the constitution in 1885? Or when the district courts were created in 1956? Or the current constitution adopted in 1968? How relevant is it that the Supreme Court started issuing PCAs in the late 1890s, and the district courts started immediately after their creation — and that they were always controversial? I wonder if all this has evolved the meaning of “judicial power” (and implied duties) in Florida.[69] My basic point: We shouldn’t take for granted the notion that PCAs are a constitutionally sanctioned way to dispose of cases.
If we ultimately find that “decision” is underdetermined, and so enter “the construction zone,” other constitutional provisions may point toward the constitutional obligation to issue written opinions. Our constitution created a right to appeal most final judgments and orders to the district courts.[70] Shouldn’t the district courts meaningfully satisfy that right? We also have a constitutional right to access courts: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”[71] This provision clearly is weightier than the Supreme Court indicated in Jackson v. State, 926 So. 2d 1262, 1264 n.5 (Fla. 2006). It should have a direct bearing on whether litigants are entitled to written opinions. Our constitution confers on us the right, approved by the people in 1992, to access public records, though this right has limited application to the judiciary.[72] All these provisions reflect our polity’s values, and that should matter.
[1] Taylor v. Knight, 234 So. 2d 156, 157 (Fla. 1st DCA 1970); Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 2d DCA 1983); Sch. Bd. of Pinellas Cnty. v. Dist. Ct. of Appeal, 467 So. 2d 985, 986 (Fla. 1985); R.J. Reynolds Tobacco Co. v. Kenyon, 882 So. 2d 986, 989 (Fla. 2004); Jackson v. State, 926 So. 2d 1262, 1264 n.5 (Fla. 2006).
[2] Planned Parenthood of Sw. & Cent. Fla. v. State, 384 So. 3d 67, 77 (Fla. 2024) (citations omitted).
[3] Fla. Const. art. V, §4(a) (emphasis added).
[4] Fla. Const. of 1885 art. V, §4.
[5] J. of the Proc. of the Const. Convention of the State of Fla. 332-36, 339-45, 435-42, 455-71, 491-500 (1885), available at https://babel.hathitrust.org/cgi/pt?id=hvd.li18va&seq=9.
[6] See Fla. Const. of 1885 art. V, §1 (amended 1956); John M. Scheb, Florida’s Courts of Appeal: Intermediate Courts Become Final, 13 Stetson L. Rev. 479, 481-85 (1984); Steven Brannock & Sarah Weinzierl, Confronting a PCA: Finding a Path Around a Brick Wall, 32 Stetson L. Rev. 367, 370-73 (2003).
[7] Fla. Const. of 1885 art. V, §5(2) (as amended in 1956 and further in 1965).
[8] See Talbot D’Alemberte, The Florida State Constitution 16 (2d ed. 2017). The judiciary article in the 1968 constitution was amended in 1972 but “made no substantial change in the provisions for District Courts of Appeal.” Id. at 166.
[9] Fla. Const. of 1868 art. XVI, §6.
[10] Fla. J. Res. 1 (1895) (proposed Fla. Const. of 1868 art. XVI, §6), available at http://edocs.dlis.state.fl.us/fldocs/leg/actsflorida/1895/1895.pdf.
[11] Floridiana, Fla. Agriculturalist 239, Apr. 14, 1897, available at https://www.newspapers.com/image/863621296/; see also Capitol Letter, Fort Myers Press 1, Aug. 19, 1897, available at https://www.newspapers.com/image/1048975615/; Collins’ Hard Cash, Morning Trib. 1 (Tampa), Aug. 21, 1897, available at https://www.newspapers.com/image/326547018/; Supreme Court Catching Up, Chipley Banner 2, Aug. 28, 1897, available at https://www.newspapers.com/image/81276865/.
[12] See D.U. Fletcher for the Supreme Bench, Polk Cnty. News 4, Dec. 19, 1890, available at https://www.newspapers.com/image/325553754/; The Supreme Court, Daily News 4 (Pensacola), Feb. 23, 1893, available at https://www.newspapers.com/image/352764690/; Editorial, The Law and the People, Daily News 2 (Pensacola), May 5, 1893, available at https://www.newspapers.com/image/352765735/; The Resolutions, Daily News 4 (Pensacola), Aug. 3, 1894, available at https://www.newspapers.com/image/352552031/; Doomed to Die!, Weekly Trib. 1 (Tampa), Jan. 16, 1896, available at https://www.newspapers.com/image/325567539/.
[13] E.g., The Constitutional Amendments, Miami Metropolis 5, Oct. 23, 1896, available at https://ufdc.ufl.edu/UF00076100/01441/zoom/4, (“These Constitutional Amendments are of far more importance than is generally supposed. We presume many lawyers have not looked below the surface far enough to see what material effect these amendments have in changing the highest law of the State.. ..Article 7 provides that in future the Supreme Court of Florida need not render any written opinion…. It is believed this will greatly reduce the work of the Supreme Court.”).
[14] J. of Proc. of the H.R., 1895 Leg., 5th Reg. Sess. 68 (Fla. 1895), available at https://sb.flleg.gov/nxt/gateway.dll?f=templates&fn=default.htm$vid=House:all (follow 1890s hyperlink; then follow 1895 Regular Session hyperlink; then follow 04/04/1895 (pp. 42-73) hyperlink).
[15] Id. at 376 (follow 1890s hyperlink; then follow 1895 Regular Session hyperlink; then follow arrow and ellipsis hyperlink; then follow 04/26/1895 (pp. 361-390) hyperlink).
[16] Fewer Opinions — Supreme Court, Tampa Daily Times 11, Dec. 16, 1918, available at https://www.newspapers.com/image/332911906; see Fla. JR 1 (1904) (proposed art. VIII, §6, Fla. Stat.).
[17] Planned Parenthood of Sw. & Cent. Fla., 384 So. 3d at 84 n.18.
[18] Fla. Const. art. XII, §10.
[19] Jason Mazzone & Cem Tecimer, Interconstitutionalism, 132 Yale L. J. 326, 333 (2022).
[20] See In re Advisory Op. to the Governor, 112 So. 2d 843, 846 (Fla. 1959); Hayek v. Lee County, 231 So. 2d 214 (Fla. 1970) (on rehearing); State v. Miami Beach Redevelopment Agency, 392 So. 2d 875, 885 (Fla. 1980); Harden v. Garrett, 483 So. 2d 409, 411 (Fla. 1985); Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250, 264 (Fla. 2005).
[21] Mazzone & Tecimer, Interconstitutionalism at 399 n.441, 402-05.
[22] Fla. Const. art. V, §3(a).
[23] Id. at §3(b).
[24] Id. at §3(b)(3) (emphasis added).
[25] Seaboard Air Line R.R. Co. v. Branham, 104 So. 2d 356, 357-58 (Fla. 1958) (citation omitted); see also Atl. Coast Line R. Co. v. City of Lakeland, 115 So. 669, 679-80 (Fla. 1927) (on petition for rehearing).
[26] Fla. Const. art. IV, §1(c).
[27] Id. at §10.
[28] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012).
[29] Id. at 171; see also Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 595-96 (2004).
[30] Noah Webster, A Compendious Dictionary of the English Language 78, 168, 208 (1806), available at https://archive.org/details/compendiousdictionaryoftheenglishlanguage1806.
[31] 1 Noah Webster, An American Dictionary of the English Language 532-33 (1828), available at https:// archive.org/details/americandictiona01websrich/mode/2up.
[32] 1 John Boag, A Popular and Complete English Dictionary 357 (1850) (decision), available at https://books.google.com/books/about/Popular_and_Complete_English_Dictionary.html?id=4XkPAAAAYAAJ; id. at 753 (judgment); Joseph E. Worcester, A Dictionary of the English Language 367 (1860) (decision), available at https://archive.org/details/cu31924027443393; id. at 793 (judgment); id. at 995 (opinion); James Stormonth, Etymological English Dictionary 135 (6th ed. 1881) (decision), available at https://archive.org/details/ etymologicalpron00storrich/mode/2up; id. at 304 (judgment); Webster’s Collegiate Dictionary 225 (Noah Porter ed., 1898) (decision), available at https://archive.org/details/websterscollegia00web/mode/2up; id. at 466 (judgment); id. at 574 (opinion); 2 Robert Hunter & Charles Morris, The Universal Dictionary of the English Language 1476 (1898) (decision), available at https://books.google.com/books/about/Universal_Dictionary_of_the_English_Lang.html?id= T5wcAQAAMAAJ; 3 Hunter & Morris, The Universal Dictionary at 2779 (judgment), available at https://archive.org/details/universaldiction03huntuoft/page/n5/mode/2up; id. at 3373-74 (opinion).
[33] Compare 1 John Bouvier, A Law Dictionary 292 (1st ed. 1839) (decision), available at https://archive.org/details/bouvierlawdictionary01, id. at 548 (judgment), 2 Bouvier, A Law Dictionary at 209-10 (1839) (opinion), available at https://archive.org/ details/bouvierlawdictionary02/mode/2up, 1 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law 356 (1883) (decision), available at https://books.google.com/books/about/A_Dictionary_of_American_and_English_Law.html?id=OwAVAAAAYAAJ, and id. at 693-94 (judgment), with 1 Benjamin Vaughan Abbott, Dictionary of Terms and Phrases 351 (1879) (decision), available at https://books.google.com/books/about/Dictionary_ of_Terms_and_Phrases_Used_in.html?id=exu3uPQy5aoC, id. at 660 (judgment), William C. Anderson, A Dictionary of Law 318 (1889) (decision), available at https://archive.org/details/cu31924022836534, id. at 576 (judgment), id. at 734-35 (opinion), Black’s Law Dictionary 339 (1st ed. 1891) (decision), available at https://archive.org/details/blacks-law-dictionary-1st-edition-1891_Petition-of-Right; id. at 654 (judgment), id. at 852 (opinion).
[34] 3 Oxford English Dictionary 96 (1933), available at https://archive.org/details/the-oxford-english-dictionary-1933-all-volumes/The%20Oxford%20English%20Dictionary%20Volume%200%20-%20Variant/.
[35] 5 Oxford English Dict. at 618.
[36] 7 Oxford English Dict. at 151.
[37] American Heritage Dictionary of the English Language 187, 386, 499 (1969), available at https://archive.org/details/amerheritagedict00amer.
[38] Black’s Law Dictionary 337, 664, 855 (2d ed. 1910), available at https://archive.org/details/blacks-law-dictionary-2nd-edition-1910_Petition-of-Right [hereinafter Black’s 1910]; Black’s Law Dictionary 494, 976-77, 1243-44 (4th ed. 1968), available at https://www.1215.org/lawnotes/dictionaries/1968_blacks_law_dictionary_4th_ed.pdf [hereinafter Black’s 1968].
[39] E.g., Black’s 1910 at 337; accord Radin Law Dictionary 231 (2d ed. 1970), available at https://archive.org/details/lawdictionary0000radi.
[40] E.g., Black’s 1910 at 665 (citations omitted); accord Edward J. Bander, Law Dictionary of Practical Definitions 72 (1966), available at https://books.google.com/books/about/Law_Dictionary_of_Practical_Definitions.html?id=IAr5AAAAIAAJ.
[41] 1 Bouvier’s Law Dictionary 793 (1914), available at https://archive.org/details/bouvierslawdicti01bouv; accord Keller v. Summers, 171 S.W. 336, 338 (Mo. 1914).
[42] 3 Bouvier’s at 2419, available at https://archive.org/details/Cu31924022836245Djvu/mode/2up.
[43] 1 Bouvier’s at 794.
[44] Black’s 1968, at 494; accord 18 C.J. at pp. 27-29 (1919), available at https://babel.hathitrust.org/cgi/pt?id=hvd.32044103152930&seq=15.
[45] See generally William D. Popkin, Evolution of the Judicial Opinion: Institutional and Individual Styles (2007); John H. Langbein, Chancellor Kent and the History of Legal Literature, 93 Colum. L. Rev. 547, 571-78 (1993); Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L. Rev. 1187, 1190-1202, 1222-33 (2007).
[46] Langbein, Chancellor Kent at 572 n.122.
[47] See Laws of Fla. Ch. 2, §7, 40 (1845), available at http://edocs.dlis.state.fl.us/fldocs/leg/actsflorida/1845/1845.pdf; 1 Joseph Branch, Atty. Gen. & Rep., Reports of Cases Argued and Determined in the Supreme Court of Florida, January Terms, 1846-7 (Tallahassee, Sibley, 1847), available at https://babel.hathitrust.org/cgi/pt?id= coo.31924111471961&seq=1.
[48] See generally Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil, 123 F.4th 309, 391 (5th Cir. 2024) (en banc) (Oldham, J., dissenting); Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. Rev. 123, 126-33 (1999).
[49] See, e.g., Clarke v. Wall, 5 Fla. 476, 477 (1854) (“Let the judgment be reversed, with costs, and the cause remanded for suchfurther proceedings as may not be inconsistent with this opinion.”).
[50] Laws of Fla. Ch. 5, §9, 47, (1845), available at http://edocs.dlis.state.fl.us/fldocs/leg/actsflorida/1845/1845.pdf. The law would have been repealed sometime later. See A Digest of the Statute Law of Florida of a General and Public Character 460 (Allen H. Bush ed., 1872) (unofficial), https://books.google.com/books/about/ A_Digest_of_the_Statute_Law_of_Florida_o.html?id=r4pJAQAAIAAJ; The Revised Statutes of the State of Florida 463 (Jacksonville, Dacosta Printing and Publishing House 1892) (official), https://books.google.com/books/about/The_Revised_Statutes_of_the_State_of_Flo.html?id=2YtJAQAAIAAJ; George A. Dietz, Sketch of the Evolution of Florida Law, 3 Fla. L. Rev. 74, 77 (1950).
[51] Fraser v. Willey, 2 Fla. 116, 118 (1848).
[52] See, e.g., Weekly Floridian 3, Mar. 7, 1882, available at https://www.newspapers.com/image/893534718/; Weekly Floridian 3, Apr. 29, 1884, available at https://www.newspapers.com/image/893535783/; Weekly Floridian 3, Nov. 18, 1884, available at https://www.newspapers.com/image/893536332/; Weekly Floridian 2, Oct. 28, 1886, available at https://www.newspapers.com/image/893537454/.
[53] See, e.g., 1 Branch, Reports of Cases at vii, 2-7; Walter W. Manley II & E. Canter Brown Jr., The Supreme Court of Florida and Its Predecessor Courts, 1821-1917, at 112 (1997); The Supreme Court, Fla. Peninsular 2 (Tampa), Mar. 10, 1860, available at https://www.newspapers.com/image/325786084/; The Crawford Case, Daily News 4 (Pensacola), Oct. 30, 1891, available at https://www.newspapers.com/image/352755297/; The Mandamus Case, Weekly Floridian 4, Oct. 31, 1891, available at https://www.newspapers.com/image/893554442/.
[54] See, e.g., Allen v. Grimley, 22 So. 1001 (Fla. 1897) (mem.).
[55] See, e.g., Ellis Speaks to Bar Group, St. Petersburg Times 3, Dec. 11, 1927, (chief justice providing statistics), available at https://www.newspapers.com/image/314652639/.
[56] Editorial, Fish Law Still Vague, Independent 2-B (St. Petersburg), Nov. 29, 1919, available at https://books.google.com/books?id=YXsLAAAAIBAJ&pg=PA2#v=onepage&q&f=false.
[57] Instability of Statutory Laws and of Judicial Decisions Attacked in Annual Address of State Bar Association Head, Tampa Sunday Trib. 4-F to 5-F, Mar. 22, 1925, available at https://www.newspapers.com/image/325667700/.
[58] Vincent C. Giblin, I Pledge, Fort Pierce News-Trib. 7 (Ft. Pierce), Oct. 12, 1952, available at https://www.newspapers.com/image/778171441/ (paid political advertisement).
[59] Baker v. State, 97 So. 2d 726 (Fla. 1st DCA 1957) (mem.); Smith v. State, 97 So. 2d 160 (Fla. 2d DCA 1957) (mem.); Dvojack v. Schneider, 96 So. 2d 231 (Fla. 3d DCA 1957) (mem.).
[60] See N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 35-36 (2022).
[61] See Planned Parenthood of Sw. & Cent. Fla., 384 So. 3d at 84 n.18.
[62] Scheb, Florida’s Courts of Appeal at 493-94.
[63] See Bruen, 597 U.S. at 36. But see Mazzone & Tecimer, Interconstitutionalism at 398 (explaining that interconstitutionalist courts usually find that later constitutions that do not challenge exercised power ratify it).
[64] See Taylor, 234 So. 2d at 157 (“Appellants are not entitled…to a written opinion.”).
[65] See Sch. Bd. of Pinellas Cnty., 467 So. 2d at 986 (finding no authority requiring a written opinion).
[66] See Jackson, 926 So. 2d at 1264 n.5.
[67] Cf. Fla. Dep’t of Revenue, 918 So. 2d at 264.
[68] Compare Advisory Op. to the Governor re: Implementation of Amend. 4, the Voting Rts. Restoration Amend., 288 So. 3d 1070, 1081 (Fla. 2020) (rejecting technical meaning), with Planned Parenthood of Sw. & Cent. Fla., 384 So. 3d at 79 n.12 (accepting technical, acquired meaning, to the exclusion of popular meaning).
[69] Fla. Const. art. V, §1.
[70] Id. at §4(b)(1). Contrast the entirely different federal scheme. See Taylor v. McKeithen, 407 U.S. 191, 194 n.4 (1972); Furman v. United States, 720 F.2d 263, 264 (2d Cir. 1983) (holding that a criminal defendant has no constitutional right to an appeal). Constitutions in other states require written opinions, but I’m not sure this contrast is helpful when interpreting our state’s constitution. See Sec’y of State Byrd v. Black Voters Matter Capacity Bldg. Inst., 375 So. 3d 335, 364 & n.3 (Fla. 1st DCA 2023) (Long, J., concurring), review granted, No. SC2023-1671, 2024 WL 370045, at *1 (Fla. Jan. 24, 2024).
[71] Fla. Const. art. I, §21.
[72] See Fla. Const. art. I, §24(a); see generally Stephen Krosschell, DCAs, PCAs, and Government in the Darkness, 1 Fla. Coastal L. J. 13 (1999).
Adam Richardson practices appellate law as a shareholder at Burlington & Rockenbach, P.A., in West Palm Beach. He earned his J.D. from the Florida State University College of Law.
This column is submitted on behalf of the Appellate Practice Section, Courtney Brewer, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, Dimitri Peteves, Sydney Feldman-D’Angelo, and Eleanor Sills, editors.
