Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, In re, No. 50409-D

CourtUnited States State Supreme Court of Florida
Writing for the CourtOVERTON; SUNDBERG; BOYD
Citation416 So.2d 1127
PartiesIn re RULE 9.331, DETERMINATION OF CAUSES BY A DISTRICT COURT OF APPEAL EN BANC, FLORIDA RULES OF APPELLATE PROCEDURE.
Decision Date24 June 1982
Docket NumberNo. 50409-D

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

Page 1128

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

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.

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...

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61 practice notes
  • T.M.H. v. D.M.T., No. 5D09–3559.
    • United States
    • Court of Appeal of Florida (US)
    • January 26, 2012
    ...––––, 2010 WL 3464410 (Fla. 1st DCA) (citations omitted), rev. granted, 47 So.3d 1290 (Fla.2010) (Table); see also In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982). 18. As the majority notes, when Appellant donated an egg for fertilization and implantation into Appellee, she signed a conse......
  • Rogers v. State, No. 1D19-878
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2020
    ...see also 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, 1128 (Fla. 1982) (noting that "if intra-district conflict is not resolved within 296 So.3d 519 the districts courts by en banc decision, totally ......
  • T.M.H. v. D.M.T., Case No. 5D09-3559
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 2011
    ...35 Fla. L. Weekly D1993 (Fla. 1st DCA) (citations omitted), rev. granted, 47 So. 3d 1290 (Fla. 2010) (Table); see also In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982). 18. As the majority notes, when Appellant donated an egg for fertilization and implantation into Appellee, she signed a......
  • Jones v. State, No. 81-2176
    • United States
    • Florida District Court of Appeals
    • February 26, 1985
    ...panel request the en banc hearing as, for example, for the purpose of overruling a prior case of the same court. See In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982). It is urged, nonetheless, that the legal basis for an en banc hearing here is an asserted lack of uniformity, under Fla.R.A......
  • Request a trial to view additional results
60 cases
  • T.M.H. v. D.M.T., No. 5D09–3559.
    • United States
    • Court of Appeal of Florida (US)
    • January 26, 2012
    ...––––, 2010 WL 3464410 (Fla. 1st DCA) (citations omitted), rev. granted, 47 So.3d 1290 (Fla.2010) (Table); see also In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982). 18. As the majority notes, when Appellant donated an egg for fertilization and implantation into Appellee, she signed a conse......
  • Rogers v. State, No. 1D19-878
    • United States
    • Court of Appeal of Florida (US)
    • May 1, 2020
    ...see also 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, 1128 (Fla. 1982) (noting that "if intra-district conflict is not resolved within 296 So.3d 519 the districts courts by en banc decision, totally ......
  • T.M.H. v. D.M.T., Case No. 5D09-3559
    • United States
    • Court of Appeal of Florida (US)
    • December 23, 2011
    ...35 Fla. L. Weekly D1993 (Fla. 1st DCA) (citations omitted), rev. granted, 47 So. 3d 1290 (Fla. 2010) (Table); see also In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982). 18. As the majority notes, when Appellant donated an egg for fertilization and implantation into Appellee, she signed a......
  • Jones v. State, No. 81-2176
    • United States
    • Florida District Court of Appeals
    • February 26, 1985
    ...panel request the en banc hearing as, for example, for the purpose of overruling a prior case of the same court. See In re Rule 9.331, 416 So.2d 1127, 1128 (Fla.1982). It is urged, nonetheless, that the legal basis for an en banc hearing here is an asserted lack of uniformity, under Fla.R.A......
  • Request a trial to view additional results
1 books & journal articles
  • Certiorari Review of Orders Denying Discovery in Civil Cases.
    • United States
    • Florida Bar Journal Vol. 96 Nbr. 2, March 2022
    • March 1, 2022
    ...decided, it was unsettled whether a threejudge panel had the authority to recede from a prior panel's decision. See In re Rule 9.331, 416 So. 2d 1127 (Fla. (37) Granting: Herman v. J.P. Morgan Sec., 35 So. 3d 188 (Fla. 4th DCA 2010) (mem.). Dismissing: Romanos v. Caldwell, 980 So. 2d 1091 (......

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