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What Makes a Case or an Issue One of Exceptional Importance?

Appellate Practice

En banc hearings and rehearings of cases and issues in Florida’s district courts of appeal are limited to two circumstances: 1) when the case or issue is of exceptional importance; and 2) when review by the entire court is necessary to maintain uniformity in the court’s decisions.1 This article considers the former circumstance — the question of exceptional importance. Alternatively, to put the question more precisely, what makes a case or an issue qualify as one of exceptional importance and what factors can and should the DCAs consider in making that determination?

The short answer to this question — often repeated by appellate practitioners and appellate judges alike with a knowing grin — is that a case is of exceptional importance whenever a majority of the judges on a DCA say that it is.2 This short answer may be both glib and cynical, but there is a kernel of truth in it. However, the short answer does not help practitioners assess what cases might qualify for en banc review on the ground of exceptional importance. Furthermore, the short answer does not assist appellate judges in deciding what cases on their dockets should be decided by the entire court instead of a three-judge panel. Thus, an inquiry into the question of what makes a case or an issue one of exceptional importance is entirely appropriate.

The Problem of Data
An inquiry into the question of what makes a case or an issue one of exceptional importance must confront the problem of the available data. There are several factors at work here. First, the DCAs rarely publish their orders denying the parties’ motions for rehearing en banc. Similarly, the DCAs generally do not publish orders denying unsuccessful requests by individual judges for hearing or rehearing en banc. It follows that there are relatively few published decisions explaining a court’s rationale for deciding to hear a case en banc. Thus, the picture of cases in which en banc review based on exceptional importance is sought but not granted is substantially incomplete. Second, some of the opinions in cases that have been heard en banc do not state whether the rationale for en banc review was exceptional importance, decisional uniformity, or both.3 Third, even in opinions where the court declares the basis for en banc review as exceptional importance, the court frequently does not explain the reasons that led the en banc majority to conclude that the case is of exceptional importance.4 To compound the uncertainty, some opinions explain that a case was heard en banc because it was “of great public importance,” confusing the ground for certifying questions to the Florida Supreme Court under Fla. R. App. P. 9.030(a)(2)(A)(v) with the ground for en banc review under Fla. R. App. P. 9.331(a).5

Indeed, the most complete discussions of when en banc review is appropriate based on a case’s status as one of exceptional importance are frequently written by the judges objecting to en banc review. It may be that “history is written by the victors.”6 But most of the detailed and thoughtful discussions by Florida appellate judges concerning the meaning of exceptional importance in the context of en banc review have been written in dissenting opinions by judges who lost the vote.7 This unusual circumstance raises the question about the extent to which one may rely on such pronouncements. To be sure, legal principles stated in dissenting opinions do not constitute binding precedent.8 However, in the context of this inquiry, such pronouncements can help us to understand how individual appellate judges approach the question of what cases qualify as having exceptional importance. With these caveats in mind, the next section of this article considers expressions made by both the DCAs and individual judges concerning the meaning of exceptional importance.

What Makes a Case or Issue One of Exceptional Importance?
The text of Rule 9.331(a) is not helpful in determining what constitutes “a case of exceptional importance.”9 The term “exceptional” is defined as “[b]eing an exception; uncommon” and “[w]ell above average; extraordinary.”10 The term “important” is defined as “[s]trongly affecting the course of events or the nature of things; significant.”11 From these definitions, we may conclude that a case of exceptional importance must have a quality or qualities that set it apart from the average, run-of-the-mill case. But what qualities lend a case particular significance? And from whose perspective does one assess whether a case is exceptionally important?

Despite the vague nature of the term “a case of exceptional importance,” the DCAs and individual judges have arrived at a broad consensus around a few basic propositions on its meaning. As an initial matter, because most litigants regard their case as important, courts should not determine the issue of exceptional importance based on the importance of the case to the litigants.12

Second, a case qualifies as one of exceptional importance only when the determination of the issue or issues in the case has significance beyond the case itself. In accordance with this idea, the First District has said that cases of exceptional importance include cases that 1) “may affect large numbers of persons” or 2) “interpret fundamental legal or constitutional rights.”13 In an earlier case, the First District said that a workers’ compensation case was not of exceptional importance when the court’s opinion did not have any impact upon the workers’ compensation jurisprudence of the state.14 negative inference, one could reasonably conclude that a case could qualify as one of exceptional importance if it did have an effect on the state’s workers’ compensation jurisprudence. Numerous individual judges have expressed their agreement with these ideas about the meaning of exceptional importance.15 Thus, there is broad agreement that a case qualifies as one of exceptional importance either when the decision has the potential to affect a substantial number of people or when it has substantial significance for the growth and development of the law. A corollary of this understanding of exceptional importance is the idea that a case does not qualify as one of exceptional importance when the panel decision simply misapplies settled precedent to particular facts.16 In such a case, the panel decision is not likely to affect the rights of persons other than the litigants or to influence the jurisprudence of the state. Because a per curiam affirmance without a written opinion has no precedential value, such a decision is an unlikely candidate for en banc review as a case of exceptional importance.17

Third, as Judge Joe A. Cowart, Jr., of the Fifth District, now retired, has said, a case does not qualify as a case of exceptional importance simply because “the en banc majority disagrees with the reasoning or result of a panel majority.”18 Stating the proposition somewhat differently, Judge Larry G. Smith of the First District, now retired, declared that the judicious use of the exceptional importance ground “means that on occasion we must recognize the right of a three judge panel to be — in our opinion — wrong.”19 Numerous individual judges have expressed their agreement with this proposition.20

The result of our inquiry so far has been the recognition of a few general propositions about what makes a case or an issue one of exceptional importance about which there seems to be a consensus. But is it possible to identify or develop any more exact criteria to identify cases or issues of exceptional importance? This question is the subject of the next section of this article.

Are Exact Guidelines Possible or Desirable?
Judge Richard W. Ervin III, who sat on the First District from 1977 to 2007, has repeatedly called for the development of exact criteria to guide the DCAs in reaching decisions concerning whether particular cases warrant en banc review on the ground of exceptional importance.21 Commentators have also noted the failure of the DCAs to define “exceptional importance.”22 There is little doubt that the DCAs have the authority to develop such guidelines. The Florida Supreme Court has held that the DCAs have the authority to develop their own standards for deciding when en banc review is appropriate for the ground of maintaining a uniformity of decisions.23 Reasoning by analogy, one may “assume that the supreme court holds the same view about the proper interpretation and application of the term ‘exceptional importance.’”24

Despite the absence of a substantial question about the DCAs’ authority to develop guidelines for determining the issue of exceptional importance, their collective failure to do so is unsurprising for several reasons. First, the term “exceptional importance” is necessarily vague and difficult to define because the DCAs must be able to apply the term across the entire spectrum of civil and criminal litigation. The flexibility necessary to apply this term so broadly makes the development of an exact definition in the form of precise guidelines exceedingly difficult. Second, the circumstances that qualify a case as one of exceptional importance are often in the eye of the beholder.25 Because individual judges frequently have different views about what makes a case of exceptional importance, the development of exact guidelines that a DCA might adopt to address this issue seems unlikely. Third, the result of a vote on a request for en banc hearing or rehearing on the ground of exceptional importance is unreviewable.26 Moreover, the en banc majority need not articulate the reason or reasons for its determination on the question of exceptional importance. The absence of any procedure for review or a requirement to explain a decision for or against en banc hearing or rehearing on the ground that the case is of exceptional importance militates against the development of any exact criteria.

Despite these difficulties, one Florida appellate judge proposed strict guidelines for determining when en banc review on the ground of exceptional importance is appropriate. In 2006, Judge Frank A. Shepherd of the Third District proposed such guidelines in a concurring opinion in University of Miami v. Wilson, 948 So. 2d 774, 791 (Fla. 3d DCA 2006) (Shepherd, J., concurring in denial of rehearing en banc). Judge Shepherd based his formulation on a reading of Rule 9.331 “to mean there must be something about the case itself, rather than an issue decided in the case, which requires resolution by the entire court en banc.”27 After a lengthy analysis of the history and purpose of Rule 9.331, Judge Shepherd outlined his guidelines for determining when a case qualifies as one of exceptional importance:

I conclude we should consider en banc review only if: (1) the outcome of the case (or its notoriety) is of greater moment or impact within the community rather than its effect upon the law of the state, and either (a) the case is important beyond the effect it will have on the litigants or (b) will affect the ability of other potential litigants to seek their own remedies, or (2) the outcome of the case may reasonably and negatively influence the public’s perception of the judiciary’s ability to render meaningful justice.28

Through the date of the amendment to Rule 9.331(d) that was designed to broaden the exceptional importance ground for en banc review to include issues as well as cases, neither the Third District nor any other DCA adopted Judge Shepherd’s proposed guidelines.29

Judge Shepherd’s formulation recognized two entirely separate categories for en banc review based on exceptional importance. The first category looked to the issues in the case. Factors external to the issues in the case formed the basis for the second category. Both of these categories merit close examination. The second category will be discussed in the next section of this article. I turn now to an analysis of the first category.

Under the first category, one had to assess the case’s impact on the rights or status of persons and entities other than the litigants to determine if the case qualified as one of exceptional importance. This is a familiar concept and — by itself — is unremarkable. However, the first category also included a substantially limiting condition: The impact of the decision in the case had to occur within the geographical limits of the DCA’s jurisdiction instead of throughout the state.30 Indeed, under the first category of Judge Shepherd’s guidelines, many of the cases that the DCAs have heard en banc as cases of exceptional importance would not have qualified for such review because they addressed issues of statewide concern rather than local matters.31 The Appellate Court Rules Committee took note of Judge Shepherd’s concurring opinion in Wilson and proposed the recent amendment to Rule 9.331(d)(1) to make clear the authority of the DCAs to consider en banc issues of exceptional importance as well as cases of exceptional importance.32

External Factors
In considering whether a case is of exceptional importance, Florida’s appellate judges typically focus on the legal issue or issues in the case and the impact of the resolution of those issues on persons and entities other than the litigants and on the development of the law. However, the second category of Judge Shepherd’s guidelines depends on a factor that is necessarily external to the issues in the case, i.e., “the public’s perception of the judiciary’s ability to render meaningful justice.”33 The question of whether factors external to the case should enter into the calculus about whether a case qualifies as one of exceptional importance remains unsettled in Florida. Notably, two district judges expressed their views on this issue in their individual opinions in an appeal brought by Wyon Dale (W.D.) Childers, a prominent figure in Florida politics for many years.34

Mr. Childers was convicted of two offenses and acquitted of a third charge.35 He appealed his convictions, and the First District voted to hear the case en banc.36 The First District’s majority was unable to reach agreement on the rationale for en banc consideration of the case,37 and several of the judges wrote separate opinions to express their views on the court’s decision to consider the case en banc. In a concurring opinion, Judge Michael E. Allen, formerly a judge on the First District, said:

Florida Rule of Appellate Procedure 9.331 authorizes en banc consideration of a “case” of exceptional importance. Although some members of this court would apparently limit this authority to those cases in which a legal “issue” of exceptional importance is presented, it seems to me that there may be circumstances in which the involvement of a particular party in a case or some unique aspect of the case’s procedural history could cause the case to be of exceptional importance even though the precise legal issues involved might be of a rather routine nature.38

In his separate opinion in the same case, Judge James R. Wolf disagreed with Judge Allen’s view on the relevance of factors external to the case in determining whether it was of exceptional importance. According to Judge Wolf, allowing a decision concerning the propriety of en banc review to turn on the identity of the party or parties “would place more importance on personalities than equal application of the rule of law.”39

Judge Shepherd’s guidelines appeared only a few months after the First District’s en banc opinion that affirmed Mr. Childers’ convictions. The second category of the Shepherd guidelines suggests that a case could qualify as a case of exceptional importance when “the outcome of the case may reasonably and negatively influence the public’s perception of the judiciary’s ability to render meaningful justice.”40 One of the examples Judge Shepherd offered as falling within the parameters of his guidelines focuses on factors external to the legal issues in a case: “[A] criminal proceeding where the accused is a recognizable figure in the local community and the panel’s decision may create a reasonable belief by the public that the judiciary was not acting impartially.”41 Although Judge Shepherd did not mention the Childers case by name, it seems reasonable to suppose that he drew this example from that case.

Notably, two federal circuit courts of appeal have expressly rejected reliance on such external factors in support of en banc review on the ground of exceptional importance. The Fifth Circuit declined to rely on the importance of the judicial office held by the appellant in a criminal case as a circumstance making his appeal one of exceptional importance.42 On one hand, the Second Circuit declined to consider the prominent position of Jacqueline Onassis, President John F. Kennedy’s widow, as a basis for en banc consideration of a panel decision in a case in which Mrs. Onassis was one of the parties.43 On the other hand, the D.C. Circuit Court of Appeals heard the principal Watergate-related “cases en banc from the outset, without first sending them to a panel.”44 Of course, the Watergate-related cases arose out of truly extraordinary events in the political and legal history of the U.S.

In Florida, the question of whether a DCA may rely on factors external to the case’s legal issues in determining the question of exceptional importance remains unsettled. The views on this subject expressed by Judges Allen and Shepherd certainly provide counsel with a basis for arguing in favor of en banc review on this basis. The likelihood of reliance by a DCA on such external factors as a basis for en banc review would be greatest when the nature of the case is such that the DCA wishes to maximize public confidence in its decision.45 I t seems likely that the DCAs in Florida would rely on factors external to the case as a basis for deeming a case to be one of exceptional importance only in the most extraordinary circumstances.

Conclusion
Despite a few broad propositions about which there is general agreement, Florida law concerning when a case or an issue qualifies as one of exceptional importance remains unsettled. The Florida courts have not adopted any guidelines for determining the question of exceptional importance; it seems unlikely that they will do so in the near future. The recent amendment to Rule 9.331(d)(1) to include issues of exceptional importance as well as cases of exceptional importance may result in an increase in the number of matters that the DCAs choose to consider en banc based on this ground. The fluidity of the current state of the law on what qualifies a case or an issue as one of exceptional importance presents counsel with an opportunity for advocacy that is both thoughtful and creative within the limitations of en banc review.

1 F la. R. App. P. 9.331(a), (d)(1). In 1984, the Florida Supreme Court amended Rule 9.331 to authorize en banc review of cases of exceptional importance effective January 1, 1985. The Florida Bar Re: Rules of Appellate Procedure, 463 So. 2d 1114, 1115 (Fla. 1984). The Florida Supreme Court recently amended Rule 9.331(d)(1) to broaden this ground for en banc review to include issues of exceptional importance as well as cases of exceptional importance, effective January 1, 2015. In re: Amendments to the Florida Rules of Appellate Procedure, No. SC14-227, 2014 WL 5714099 (Fla. Nov. 6, 2014). In what appears to be an oversight, the court did not make a corresponding amendment to the pertinent language of Rule 9.331(a) regarding the two grounds for en banc review.

In this article, I will generally refer to cases of exceptional importance instead of both cases and issues of exceptional importance because that is the way in which both courts and commentators have framed the discussion before the recent amendment to Rule 9.331(d)(1).

2 See Childers v. State, 936 So. 2d 619, 633 (Fla. 1st DCA 2006) (Kahn, C.J., dissenting) (claiming that the court’s exercise of its en banc jurisdiction in the case was dependent “solely upon the ability of the moving judge to obtain votes from a majority of judges.”). In 2006, the First District issued two en banc opinions in the Childers case. The first opinion, which addressed the merits of Mr. Childers’ appeal, is reported at 936 So. 2d 585 (Fla. 1st DCA 2006). I will refer to the first opinion as “ Childers I. ” The second opinion, which denied Mr. Childers’ motion for certification of a question to the Florida Supreme Court, is reported at 936 So. 2d 619. I will refer to the second opinion as “ Childers II. ”

3 See, e.g., LaValley v. State, 30 So. 3d 513 (Fla. 5th DCA 2009); Brooks v. State, 816 So. 2d 199 (Fla. 1st DCA 2002); McDowell v. Rodriguez, 822 So. 2d 14 (Fla. 5th DCA 2002); Chancellor Media Whiteco Outdoor v. Fla. Dep’t of Transp. , 795 So. 2d 991 (Fla. 5th DCA 2001); M orris v. State, 789 So. 2d 1032 (Fla. 1st DCA 2001).

4 See, e.g., In re Estate of Walker, 609 So. 2d 623 (Fla. 4th DCA 1992); Stone v. State, 547 So. 2d 158 (Fla. 4th DCA 1989).

5 See, e.g., Andrews v. State, 536 So. 2d 1108, 1109 (Fla. 4th DCA 1988) (stating that the court is deciding the case en banc “as a matter of great public importance.”).

6 The source of this quote, which is frequently misattributed to Winston Churchill, is unknown.

7 See, e.g., Ortiz v. State, 24 So. 3d 596, 617-20 (Fla. 5th DCA 2009) (Cohen, J., dissenting); Childers I, 936 So. 2d at 610-14 (Ervin, J., concurring and dissenting); Chancellor Media, 795 So. 2d at 996-97 (Pleus, J., dissenting); Morris, 789 So. 2d at 1037-39 (Browning, J., dissenting); State v. Georgoudiou, 560 So. 2d 1241, 1247-48 (Fla. 5th DCA 1990) (Cowart, J., dissenting); Marr v. State, 470 So. 2d 703, 715-17 (Fla. 1st DCA 1985) (Ervin, C.J., dissenting on rehearing en banc).

8 Am. Home Assur. Co. v. Plaza Materials Corp. , 908 So. 2d 360, 369 (Fla. 2005).

9 In re Doe 13-A, 136 So. 3d 748, 753 (Fla. 1st DCA 2014) (Rowe, J., dissenting on denial of hearing en banc) (noting that “[e]xceptional importance is left undefined in the rule.”).

10 The American Heritage Dictionary of the English Language 619 (4th ed. 2000).

11 Id. at 881.

12 Georgoudiou, 560 So. 2d at 1247 (Cowart, J., dissenting); see also In re Petition of Doe, 973 So. 2d 548, 555 (Fla. 2d DCA 2008) (Casanueva, J., concurring in order on motion for rehearing en banc) (“No one can doubt that this case is of ‘exceptional importance’ to Ms. Doe. However, that is not the standard this court must use in deciding whether to grant en banc consideration to a litigant.”).

13 Doe v. Dep’t of Health & Rehab. Servs. (In re Interest of D.J.S.), 563 So. 2d 655, 657 n.2 (Fla. 1st DCA 1990) (on motion for rehearing en banc) (citing 24
Idaho L. Rev. 255, 265 (1987-1988)).

14 Gainesville Coca-Cola v. Young, 632 So. 2d 83, 84 (Fla. 1st DCA 1993).

15 See, e.g., Ortiz, 24 So. 3d at 618-19 (Cohen, J., dissenting); In re Petition of Doe, 973 So. 2d at 555-56 (Casanueva, J., concurring); Childers II, 936 So. 2d at 634-37 (Kahn, C.J., dissenting); Chancellor Media, 795 So. 2d at 997 (Pleus, J., dissenting); Locke v. State, 719 So. 2d 1249, 1254 (Fla. 1st DCA 1998) (Webster, J., dissenting); Georgoudiou, 560 So. 2d at 1247-48 (Cowart, J., dissenting).

16 Ortiz, 24 So. 3d at 620 (Cohen, J., dissenting); Childers I, 936 So. 2d at 609 (Kahn, C.J., concurring and dissenting); Childers I, 936 So. 2d at 613 (Ervin, J., concurring and dissenting).

17 See Georgoudiou, 560 So. 2d at 1248 (Cowart, J., dissenting). Nevertheless, in Georgoudiou, the Fifth District, sitting en banc, withdrew a panel decision consisting of a per curiam affirmance without opinion upholding the trial court’s decision, including a separate dissenting opinion. The en banc majority reached a different result, reversing the trial court. Id. at 1244. See also Lanier v. Jones, 619 So. 2d 387 (Fla. 5th DCA 1993) (en banc decision withdrawing the panel’s per curiam affirmance but reaching the same result as the panel).

18 Georgoudiou, 560 So. 2d at 1247 (Cowart, J., dissenting).

19 Marr, 470 So. 2d at 712 (Smith, J., specially concurring).

20 See, e.g., Ortiz, 24 So. 3d at 619 (Cohen, J., dissenting); Childers I, 936 So. 2d at 613 (Ervin, J., concurring and dissenting); Chancellor Media, 795 So. 2d at 997 (Pleus, J., dissenting); Stone, 547 So. 2d at 162-63 (Anstead, J., dissenting); State v. Diamond, 553 So. 2d 1185, 1203 n.5 (Fla. 1st DCA 1988) (Zehmer, J., dissenting on rehearing en banc) (emphasizing “the unique[]…circumstances in this case” and that the order under review involved the exercise of the trial court’s discretion); Carroll v. State, 497 So. 2d 253, 265 (Fla. 3d DCA 1985) (Hubbart, J., dissenting on rehearing en banc).

21 Childers I, 936 So. 2d at 612 (Ervin, J., concurring and dissenting); Diamond, 553 So. 2d at 1199-1200 (Ervin, J., concurring specially on rehearing en banc); Marr, 470 So. 2d at 716-17 (Ervin, C.J., dissenting on rehearing en banc); see also In re Doe 13-A, 136 So. 3d at 754 (Rowe, J., dissenting on denial of hearing en banc) (observing that the First District “has not expressly articulated standards for determining whether a case is exceptionally important.”). Other judges have lamented the DCAs’ failure to develop appropriate procedures and guidelines for the exercise of en banc review. See, e.g., Fraga v. Dep’t of Health & Rehab. Servs. , 464 So. 2d 144, 148-49 (Fla. 3d DCA 1984) (Baskin, J., dissenting on rehearing).

22 Steven Brannock & Sarah Weinzierl, Confronting a PCA: Finding a Path around a Brick Wall, 32 Stetson L. Rev. 367, 378-79 (2003); Harvey J. Sepler, En Banc Review in Florida Appellate Courts, 62 Fla. B. J. 37, 38 (May 1988).

23 Chase Fed. Sav. & Loan Ass’n v. Schreiber, 479 So. 2d 90, 94 (Fla. 1985).

24 Childers II, 936 So. 2d at 632 (Padovano, J., concurring).

25 Id. (Padovano, J., concurring) (acknowledging “that there is an element of subjectivity in separating cases that are of exceptional importance from those that are not.”).

26 Philip J. Padovano, Florida Appellate Practice §21:7 (2014).

27 Id. at 788.

28 Id. at 791 (footnote omitted).

29 Judge Thomas Logue of the Third District has recently described Judge Shepherd’s formulation as a “very exacting, but proper standard.” Fla. Dep’t of Agric. & Consumer Servs. v. Lopez-Brignoni, 114 So. 3d 1135, 1136 (Fla. 3d DCA 2013) (Logue, J., dissenting).

30 The two examples Judge Shepherd provides for the first prong of his guidelines confirm this understanding: “(1) an electoral tabulation dispute where the electoral boundaries are solely within the jurisdiction of a district court of appeal as distinguished from a dispute where the boundaries cross district lines; [and] (2) an environmental dispute of local significance.” Wilson, 948 So. 3d at 791 n.7. For examples of actual cases that might satisfy both of these requirements, see Lopez-Brignoni, 114 So. 3d 1138 (reviewing an order certifying a class of Miami-Dade County homeowners affected by the Department of Agriculture and Consumer Service’s Citrus Canker Eradication Program); VLX Props., Inc. v. S. States Utils., Inc. , 792 So. 2d 504 (Fla. 5th DCA 2001) (affirming a trial court ruling that inverse condemnation had not been established).

31 For examples of cases previously heard en banc that would not qualify for such review under the Shepherd guidelines, see Ortiz, 24 So. 3d 596 (search and seizure); Vaccato v. Pustizzi, 648 So. 2d 1206 (Fla. 4th DCA 1995) (rehabilitative alimony); State v. Dorian, 619 So. 2d 311 (Fla. 3d DCA 1994) (speedy trial), quashed, 642 So. 2d 1359 (Fla. 1994); Breakstone v. MacKenzie, 561 So. 2d 1164 (Fla. 3d DCA 1989) (judicial disqualification), approved in part and quashed in part sub nom, MacKenzie v. Super Kids Bargain Store, Inc. , 565 So. 2d 1332 (Fla. 1990); Ranger Ins. Co. v. Bal Harbour Club, Inc. , 509 So. 2d 945 (Fla. 3d DCA 1987) (insurance law), quashed, 549 So. 2d 1005 (Fla. 1989); Vic Potamkin Chevrolet, Inc. v. Horne, 505 So. 2d 560 (Fla. 3d DCA 1987) (negligent entrustment of motor vehicle), approved, 533 So. 2d 261 (Fla. 1988).

32 See Three-Year Cycle Report of the Appellate Court Rules Committee, Appendix E-1, /cmdocs/cm205.nsf/c5aca7f8c251a58d85257236004a107f/713727942eeec409852577fa0049b4c5/$FILE/Appendix%20E%20Referral%20Letters%20Final.pdf.

33 Wilson, 948 So. 2d at 791.

34 Childers I, 936 So. 2d 585.

35 Id. at 592; Childers v. Floyd, 642 F.3d 953, 962-63 (11th Cir. 2011), cert. granted, judgment vacated by 133 S. Ct. 1452 (2013).

36 Childers I, 936 So. 2d at 587.

37 Id. at 588 n.1.

38 Id. at 599 (Allen, J., concurring).

39 Id. at 614 (Wolf, J., concurring and dissenting).

40 Wilson, 948 So. 2d at 791.

41 Id. at 791, n.7.

42 United States v. Nixon, 827 F.2d 1019, 1023 (5th Cir. 1987) (on petition for rehearing and suggestion for rehearing en banc) (federal judge convicted of perjury before a grand jury); see also United States v. Nixon, 816 F.2d 1022 (5th Cir. 1987) (affirming federal judge’s conviction).

43 Gallela v. Onassis, 487 F.2d 986, 1004 (2d Cir. 1973) (on petition for rehearing en banc).

44 Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59
Geo. Wash. L. Rev. 1008, 1026 (1991) (listing the Watergate-related cases heard en banc).

45 Cf. id. (assessing the D.C. Circuit’s motivation for deciding to hear the Watergate-related cases en banc).

 

Judge Douglas A. Wallace is a judge on the Second District Court of Appeal.

This column is submitted on behalf of the Appellate Practice Section, Ceci Culpepper Berman, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.

Appellate Practice