Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, In re, 50409-D

• Citation: 416 So.2d 1127
• Decision Date: 24 June 1982
• Docket Number: No. 50409-D,50409-D
• Court: United States State Supreme Court of Florida
• Parties: In re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.

Page 1127

416 So.2d 1127

In re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.

No. 50409-D.

Supreme Court of Florida.

June 24, 1982.

Original Proceeding--Florida Rules of Appellate Procedure.

E. R. Mills, Jr., Chairman of the Conference of Judges of District Courts of Appeal, Tallahassee, and John R. Beranek, Chairman of the Florida Appellate Court Rules Committee of The Florida Bar, West Palm Beach, for petitioners.

OVERTON, Justice.

The Florida Conference of District Court of Appeal Judges has petitioned this Court to consider an emergency rule change to address practical problems which have arisen in the en banc decisional process under the en banc rule, Florida Rule of Appellate Procedure 9.331. We accept jurisdiction pursuant to Florida Rule of Judicial Administration 2.130(a) and (f).

The problems presented in the petition for our solution concern the number of judges of a district court of appeal necessary to constitute a "majority" in terms of an en banc panel. An additional issue presented by the chief judges of the district courts concerns whether one three-judge panel can expressly overrule or recede from a prior opinion of another three-judge panel of the same district upon the same point of law. We find that rule 9.331 and its commentary should be modified.

First and foremost, we must emphasize that a direct and important interrelationship exists between the en banc rule and the new constitutional amendment which limits Supreme Court jurisdiction. See art. V, § 3, Fla.Const. The amendment substantially strengthened the position of the district courts of appeal as final appellate courts. The en banc rule is an essential part of the philosophy of the constitutional scheme embodied in the new amendment because the Supreme Court no longer has jurisdiction under the amendment to review intra-district conflict.

The appellate structure commission, which this Court established to study the efficiency of Florida appellate structure, recommended that intra-district conflict be resolved by the district courts of appeal sitting en banc, rather than by this Court. The commission also recommended that such an en banc procedure be implemented by court rule. In its study, ¹ the commission considered any possible constitutional infirmity of such a rule and concluded that no constitutional impediment existed. The commission also noted that the federal courts had given a similar construction and interpretation to almost identical language in the congressional act which established the United States Circuit Courts of Appeals This Court agreed with the commission and concluded that an en banc rule as part of Florida's appellate structural scheme was appropriate and constitutional, particularly under the philosophy that the district courts should, to the extent possible, be final appellate courts. See In Re Rule 9.331, Determination by a District Court of Appeal En Banc, 374 So.2d 992, modified, 377 So.2d 700 (Fla.1979). Justice Boyd disagreed with the majority and expressed his dissent on constitutional grounds. Id. at 994-95 (Boyd, J., dissenting). The constitutional amendment was thereafter presented to the legislature and, in turn, to the electorate of the state with the understanding that the district courts of appeal could sit en banc to resolve intra-district conflict. In fact, under the new amendment, if intra-district conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law. The new appellate structural scheme, including the en banc process, was intended to solve that problem and to provide litigants with a clear statement of the law within any given district.

and the resulting authority for each circuit to proceed en banc. ²

This historical discussion leads to the question raised by the chief judges of the district courts, whether one three-judge panel can expressly overrule or recede from a prior decision of a three-judge panel of the same court on the same point of law. Under our appellate structural scheme, each three-judge panel of a district court of appeal should not consider itself an independent court unto itself, with no responsibility to the district court as a whole. The view that one district court panel is independent of other panels on the same court could possibly be a proper constitutional interpretation if our constitution provided that district courts were merely intermediate courts, with this Court, as the state's highest court, having full discretionary jurisdiction to review all intermediate court decisions. This was not, however, the type of appellate structural scheme adopted by the electorate. In fact, the suggestion that each three-judge panel may rule indiscriminately without regard to previous decisions of the same court is totally inconsistent with the philosophy of a strong district court of appeal which possesses the responsibility to set the law within its district.

Although we agree that, to carry out the purpose behind our new appellate structure, a three-judge panel of a district court should not overrule or recede from a prior panel's ruling on an identical point of the law, we cannot accept the chief judges' suggestion that we should prohibit that action by court rule. Without addressing possible constitutional problems, we find that a strict rule of procedure would be unworkable and inappropriate under the circumstances. We recognize that in many instances factual circumstances are different and cases may be distinguishable on that basis. In addition, the issues raised and argued in a prior case may not be the same as issues raised and argued in the case under review.

We have full confidence that the district court of appeal judges, with a full understanding of our new appellate structural scheme, will endeavor to carry out their responsibility to make the law consistent within their district in accordance with that intent. We would expect that, in most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing. As an alternative, the district court panel could, of course, certify the issue to this Court for resolution. Consistency of law within a district is essential to avoid unnecessary and costly litigation. We conclude that the district court judges, through their opinions, will adopt principles to ensure this result. ³

The next item for our determination requires a definition of the term "majority of the district court" as applied in en banc proceedings. This issue, in essence, poses two questions for our review. The first is whether the term "majority of the district court" contemplates an absolute majority of all the active judges of a district court to grant an en banc hearing or whether it contemplates only a majority of those judges actually participating in the en banc hearing request. The second is whether the term contemplates an absolute majority of the active judges of the district court to render an en banc opinion on the merits or whether a simple majority of those active judges actually participating on the case is sufficient.

It is our opinion that a simple majority of the active judges actually participating and voting on a case, without regard to illness or recusal, is all that should be necessary to call an en banc hearing as well as to reach a decision on the merits. We reject the argument that we should require a majority of the active judges on the entire court, whether participating or not. The asserted justification for the latter view is that, because the decision will bind the district court as a whole, a majority of the actual number of the active judges should be required to both call an en banc hearing and to reach a decision on the merits of the issues presented. That view, however, could punish the litigants by possibly requiring an extraordinary number of judges to call an en banc hearing or, if called, to vote in favor of an opinion to reach a decision in the case. For instance, on an eight-judge court, if only five are sitting (e.g., two disqualified and one ill), an extraordinary vote of all five of the sitting judges would be required to both call an en banc hearing and to reach a decision on the merits. This, we believe, is unfair to the litigants who have no control over the disqualification or illness of judges in active service. Further, such a rule would be contrary to the philosophy of establishing finality and consistency in the law of each district with the prompt resolution of intra-district conflict. Failure to reach an en banc decision simply because of illness or recusal of one or more judges could leave intra-district conflict with no suitable means for resolution within the district court. For this reason, we conclude that only a majority of the actual sitting members of the court is necessary both to call and to reach an en banc decision.

The final issue concerns the effect of a tie vote by an en banc panel when considering the merits of the case. ⁴ We conclude that an evenly split vote on the merits after an en banc hearing leaves the panel decision of the district court standing, and, in the event that there is no panel decision, the trial court decision must be affirmed. In either case, the divergent views culminating in a tie vote of the en banc court render the matter one which...