En Banc Hearings, By the Numbers.

• Author: Slicker, William D.

In 2019, Florida's five appellate courts collectively issued 12,208 opinions. (1) In past years, Florida's appellate courts have collectively issued up to 26,800 cases with a recent yearly average being close to 24,700 cases. (2) The Second District Court of Appeal has 16 judges, which means that 560 different three-judge panels are possible. The First District Court of Appeal has 15 judges, which means that 455 different three-judge panels are possible. (3) The Fourth District Court of Appeal has 12 judges, which means 220 different three-judge panels are possible. (4) The Fifth District Court of Appeal has 11 judges, which means that 165 different three-judge panels are possible. Even the Third District Court of Appeal with only 10 judges may have 120 different three-judge panels. Since 1982, Florida's appellate courts have collectively issued 492 en banc opinions, (5) which means Florida's appellate courts have only issued, on average, 13 en banc opinions per year. (6) Why is that the case? This article explains why.

Federal En Banc History

In 1941, the U.S. Supreme Court addressed the issue of whether en banc panels were allowed in the federal circuit courts. The problem was that the federal statutes provided that "each circuit court of appeals shall consist of three judges, of whom two shall constitute a quorum." This collided with the fact that Congress had allowed some federal circuit courts to have more than three judges. The U.S. Supreme Court believed that since the federal circuit courts were supposed to be "courts of last resort in the run of ordinary cases" that conflicts within a circuit should be avoided. In order to avoid such conflicts, the U.S. Supreme Court held that a federal circuit court of appeals could sit en banc. (7) The process for federal en banc decisions was incorporated into Rule 3.5 of the Federal Rules of Appellate Procedure in 1979.

Florida En Banc History

Like the federal statutes, the Florida Constitution also created three-judge courts of appeal. (8) Like the federal system, Florida's appellate courts expanded beyond three members. In light of the new Federal Rules of Appellate Procedure that were being enacted in 1979, the Florida Supreme Court established a commission to make recommendations regarding Florida's Rules of Appellate Procedure. (9) The commission recommended a rule that would allow intra-district conflicts to be resolved by district courts of appeal sitting en banc. (10) In response to that recommendation, in 1979 the Florida Supreme Court adopted Fla. R. App. P. 9.331. (11) As originally adopted, the only ground for an en banc proceeding was "to maintain uniformity in the court's decisions." The rule was later amended to allow for en banc proceedings for cases of "exceptional importance." (12)

Procedure

In the district courts of appeal, any judge may request a vote to determine whether there will be an en banc hearing and a party may file a motion for an en banc rehearing. The chief judge conducts a vote, and if a majority of the judges...