Asking for written opinion from a court that has chosen not to write one.

• Author: England, Arthur J., Jr.

Florida's appellate rule governing motions for rehearing was amended, effective January 1, 2003, to add the following language to Rule 9.330(a):

When a decision is entered without opinion, and a party believes that a written opinion would provide a legitimate basis for supreme court review, the motion may include a request that the court issue a written opinion. If such a request is made by an attorney, it shall include the following statement:

"I express a belief, based upon a reasoned and studied professional judgment, that a written opinion will provide a legitimate basis for supreme court review because (state with specificity the reasons why the supreme court would be likely to grant review if an opinion were written)."

Amendments to Florida Rules of Appellate Procedure, 827 So. 2d 888 (Fla. 2002).

This article explores this new rehearing authorization (the rule amendment) to see if it achieves the purpose for which it appears to have been adopted: to ameliorate the consequences of retaining in the district courts of appeal the freedom to render decisions that have no explanation or citations of authority. The author of this article concludes that the rule amendment is flawed, and that it should either be withdrawn or substantially modified.

Background of Constitutional Limitation on Supreme Court's Review of District Court Decisions for Which No Opinion is Written

On March 11, 1980, the Florida Constitution was amended to prevent the Florida Supreme Court from reviewing decisions of the district courts of appeal in cases where no explanatory opinion has been written and an order affirming the trial court has been entered saying simply "per curiam affirmed." These decisions are commonly referred to as "PCAs." (1) The impetus for limiting the court's jurisdiction was its ever-increasing caseload, and a conviction by some of the justices that the court itself was incapable of limiting its intake for the review of district court decisions. (2) Over the years, there had been a steady erosion of the finality of decisions rendered by the district courts as a result of the court's willingness to accept PCAs for review through the judicially crafted mechanism known as "record proper." (3)

The most visible and articulate advocate against passage of the proposed constitutional amendment in 1980 was Tobias Simon, a skilled appellate and trial lawyer who had fought long, hard, and innovatively to protect the rights of Florida's citizens. Toby believed that litigants should have the right to ask the justices of the Supreme Court to review any decision rendered by a district court, and that the grant or denial of review should be left to the judgment of the justices and not arbitrarily put beyond their reach by the constitution. He argued that the U. S. Supreme Court was not constrained by the U.S. Constitution with respect to its certiorari jurisdiction, and that Florida should continue to follow the federal model. In public writings and debates with Toby, the author argued that our district courts were created in 1956 with the express intention that they be final with respect to appeals as of right in Florida, (4) that for more than 30 years the justices of the Florida Supreme Court had demonstrated an inability to self-limit the number of decisions brought to the court for a second merits review, and that, unlike the U.S. Supreme Court, under the proposed constitutional amendment the Florida Supreme Court would retain both a range of mandatory appeals and categories of discretionary review that would ensure second level appellate review of decisions having statewide importance. Based on the court's then caseload, the author suggested that a continuation of the court's unlimited certiorari review was a formula for quantity discounts in appellate justice. (5)

Advocates for the proposed amendment fully understood the competing tensions inherent in a flat prohibition against Supreme Court consideration of decisions for which district court judges chose not to offer an explanation. They knew, on the one hand, that a large proportion of the workload of the district courts consisted of cases in which the party losing at the trial level was simply exercising a constitutional right for appellate review of a matter that merely applied well-established legal principles to particular facts. In cases of that nature, which constituted the bulk of the decisions decided without an opinion, a sound judicial system need not and should not provide a second level of full appellate consideration.

They also knew, on the other hand, that not all litigants and lawyers accepted the absence of an explanatory decision as an appropriate means for the disposition of an appeal, even though the use of no-opinion decisions had long been a staple of appellate courts for the disposition of routine "as of right" appeals. (6) They also recognized that district court judges, being human, had from time to time declined to write an explanatory opinion in order to camouflage decisions made for reasons they chose not to state publicly. Advocates for the constitutional change believed this occurred on very few occasions, however, and that an absolute ban on the Supreme Court's review of no-opinion decisions constituted a necessary tradeoff for ensuring the finality of decisions made by the district courts and for controlling the Supreme Court's caseload.

The constitutional amendment was adopted by two-thirds of the voters in Florida, and immediately succeeded in reducing the Supreme Court's caseload. (7) Not surprisingly, though, dissatisfaction with the use of PCAs did not abate. (8)

Recent Reevaluation of the Use of PCAs

Twenty years after adoption of the constitutional limitation on the Supreme Court's review of PCAs, the continued use of PCAs by the district courts was revisited by the Committee on Per Curiam Affirmed Decisions of the Florida Supreme Court's Judicial Management Council. (9) The committee was composed of one judge from each of the five district courts of appeal, one state attorney, one public defender, one assistant public defender, one assistant attorney general, and one private attorney who specialized in appellate law. The assigned task of the committee was to make "a thorough and comprehensive inquiry into the practice of the issuance of PCA decisions and their effect on the judicial system." Final Report and Recommendations of the Committee on Per Curiam Affirmed Decisions of the Judicial Management Council (hereinafter "Report") at viii.

The committee's final report did not recommend removal of the constitutional ban on the Supreme Court's review of PCAs.

The PCA Committee believes that the PCA performs a useful function when utilized properly ... including ... when the law is so well settled on the issues presented that no further explication is required, and when the principle of law upon which the decision rests is so generic (e.g...