Concurrals, Dissentals, and this Commental.

• Date: 01 March 2023
• Author: Jay, Helen

Increasingly, appellate judges are "writing dissents from, and concurrences in, orders denying rehearing en banc (2)--colloquially known as dissentals and concurrals." (3) Although the juridical lexicon has garnered support, some judges have "lamented their proliferation" (4) and labelled them as "solipsistic creations." (5) However, these naysayers fail to recognize that, inevitably, dissentals and concurrals shape the path of law. (6) "By encouraging the free and thorough canvassing of issues," (7) these neologisms provide insight into the judicial decision-making process. Furthermore, these "thinly...veiled entreaties to the Supreme Court," focus public scrutiny on a case. (8) This commentary posits that dissentals and concurrals have become normative practices, within the appellate process, and proposes a revision to the Florida Rules of Appellate Procedure.

What's in a Name?

"Action without a name....attached to it, is meaningless." (9) "Dissent." The etymology of "dissent" stems back to the mid-15th century. From the Latin verb dissentire, the term is an amalgam of dis, or "difference," plus sentire, "to feel." (1)0 Today, the term is construed to mean contrariety of opinion. (11)

"Concur." Similar to its counterpart, the etymon of concur originated in the 15th century. Formed by the morphemes com, "together," plus currere, "to run," the verb denotes concurrent events. (12) Within the appellate forum, the definition has crystallized to signify an "accordance in opinion." (13)

The label conferred upon a concept provides insight into the function of the concept. In the legal realm, dissents and concurrences refer to generalized opinions. Unique to reviewing bodies, dissents and concurrences operate independently from the majority opinion. Each opinion is an explanation--one as to why a jurist deviated from the majority stance. Within their given definitions, dissents and concurrences encompass "procedural orders, jurisdictional orders, dismissals for mootness, the grant or denial of certificates of probable cause, and certificates of appealability--to name just a few." (14)However, given the lack of specificity, the name, in itself, does not bespeak the judicial proceeding the opinion arose from.

"Dissent-al." "Concurr-al." These neologisms, referring to a dissent and a concurrence from the denial of rehearing en banc, were minted by Judge Kozinski. (15)By fusing "dissent" and "concur" with the suffix-al, Judge Kozinski coined names for the now institutionalized practices. Critics contend that the nomenclature was fashioned "out of whole cloth" (16) and insist that these "un-words have no proper place in the judicial lexicon." (17) However, bestowing a name can legitimize a practice. The convention already existed; Judge Kozinski merely acknowledged it.

"So, what value is there in adding-al to dissent and concur?" (18) Much. From a semantic standpoint, the-al suffix functions as a clarifier. In linguistics, the suffix-al loosely translates to "of the kind of, pertaining to, or having the form or character of that" named by the stem. (19) The morphological process of affixing-al to base words highlights that dissentals and concurrals possess the "form or character" of their namesakes yet are markedly distinct. While dissents and concurrences are associated with routine panel decisions, dissentals, and concurrals refer to opinions that are inextricably linked to a procedural order denying review. (20) The new nouns do not "compete with synonymous words of different formations," but, rather, underscore the nature of the opinion. (21)

Notably, the newfound terminology is not afforded a higher or lower stature than concurring and dissenting opinions. Instead, the nomenclature merely imbues the law with more specificity. By attaching the-al suffix, dissent-als and concurr-als typify the kind of proceeding each is predicated upon. Furthermore, the label engenders predictability and consistency throughout the legal process. Unique practices warrant unique names. Consequently, these legal creatures should not be concealed by a misnomer but vindicated in their-al form.

Institutional Framework and Theoretical Underpinnings of En Banc Proceedings

In Florida, Appellate Rule of Procedure 9.331(d) governs the determination of cause for rehearings en banc. (22 )Pursuant to the rule, a pending case must be evaluated by all judges in regular active service, and not by the assigned panel of three, if a majority of the judges vote to rehear the case en banc. (23) Notably, voting on a "party's motion for rehearing en banc is not automatic--a judge must request the vote, absent which the motion is administratively denied." (24) The request for a vote, on a party's motion, can emanate from a panel or non-panel judge, and "the resulting internal dialogue can be tepid or fierce." (25) Akin to its federal counterpart, Rule 9.331(d) (1) outlines that en banc rehearings shall not be ordered unless necessity dictates uniformity in decisions or the case or issue is of exceptional importance. (26)

* Uniformity in the Court's Decisions--After a 1980 revision of the Florida Constitution, and the concomitant adoption of Rule 9.331(a), the Supreme Court lost jurisdiction to review intra-district conflicts. (27) Inspired by federal construction, the Supreme Court's certiorari jurisdiction was subsequently confined to express and direct inter-district conflicts. (28) The interrelationship between the rule and the constitutional amendment underscored that the district courts should, to the extent possible, function as final appellate courts. (29) This appellate structural scheme was intended to provide litigants with an unequivocal statement of the law and, thereby, reduce intra-circuit inconsistency. (30) Intra-district conflicts, in turn, are now resolved exclusively by the en banc procedure.

In the leading case of Chase Federal Savings & Loan Association v. Schreiber, 479 So. 2d 90 (Fla. 1986), the Supreme Court reaffirmed the constitutionality of this appellate paradigm. By doing so, the court furthered "a primary function of the en banc rule," which "is to standardize the decisions of each district so as to minimize the importance of the 'luck of the [appellate] draw'...in presenting cases before increasingly multi-member courts." (31) Without en banc review for uniformity, the district court would "merely be an 'assemblage of...randomly-assigned, and autonomous, three-judge panels each doing as it sees fit.'" (32) The consistency of decisions within each district is paramount to the credibility of the judicial system.

* Exceptional Importance--"The authority to allow reconsideration by an entire district court of appeal, in cases of exceptional importance, was added by a 1984 amendment to Rule 9.331." (33) However, the "exceptional importance" criterion has proven more intractable than the uniformity standard. Exceptional importance is left undefined in the rule, and only a handful of Florida decisions expressly address the factors that may render a case "exceptionally important." (34) From a definitional standpoint, a case of exceptional importance must possess a quality distinguishable from the ordinary, run-of-the-mill case. (35) Yet, even with the addition of the adverb, "exceptionally," the adjective "important" retains a subjective quality. Consequently, the glib answer, often repeated by practitioners and judges alike, "is that a case is of exceptional importance whenever a majority of the judges on a district court say that it is."(36)

* Denial of a Rehearing En Banc--Because there is no appellate process to review the denial of a motion for rehearing en banc (37) the dissental functions as a judicial "Hail-Mary." (38) It is unsurprising that disagreement about whether to review a case en banc becomes sharp enough to motivate a dissent from a request's denial. Cases warranting such review are those in which the stakes are unusually high, or the law is especially unclear. (39) Judges retain wide discretion in deciding which cases are important enough for the attention of the full bench. (40) Dissentals accompanying procedural orders denying en banc review stem from the disagreement among judges about how to exercise that discretion.

Nevertheless, since judges aren't required to explain their votes, it is indeterminate whether votes against en banc review reflect views on the merits or a conviction that review is statutorily unjustified. (41) "A gray area of uncertainty can arise where a majority of a court disagrees with a panel decision but lacks the en banc votes to deem the case, or one of its issues, of exceptional importance or necessary for uniformity in its precedents." (42) Without clear guidance, "a murky and malleable jurisprudence can result." (43)

Historical Underpinnings of Concurrals and Dissentals

After losing an en banc vote in 1943, Judge Denman from the Ninth Circuit penned the first known dissental. (44) The dissental symbolized a departure from the conventional practice "that en banc decisions could only be made by one of the judges who decided the case." (45) Denman argued that this custom was the judicial equivalent of the "fox guarding the henhouse." (46) Thereafter, he continued his affront to the censorship of non-panel judges in subsequent opinions. Ultimately, Denman was vindicated, if posthumously, by the adoption of Federal Rule of Appellate Procedure 35. (47)

In 1960, Judge Clark seized the proverbial pen. After being outnumbered on an en banc vote, he wrote a dissental excoriating the Second Circuit for not taking the case. In response, Judge Friendly "took umbrage, impugning the legitimacy of a practice that enabled any active judge to publish a dissent.although he did not participate in it." (48) Recently, one of Judge Friendly's successors, Judge Pooler, reiterated his complaint. She characterized dissentals as "oddities" with "as much force of law as if those views were published...