A Not-So-Little Problem with Precedent: Intra-district Conflict in Florida District Courts of Appeal.

• Author: Berman, Kimberly Kanoff

There is a difference in opinion when it comes to intra-district precedent in Florida. Most lawyers believe--and some judicial opinions hold--that a district court's three-judge panel is bound by a prior panel opinion until the district court sitting en banc or the Florida Supreme Court overrules it. Surprisingly, some district court opinions hold (or at least instruct) that when two panel opinions conflict, the later opinion controls. Thus, there are two approaches to reconciling intra-district precedent in Florida: "older is better" versus "later is greater." (1)

In this article, we trace the history of intra-district conflict in Florida, outline how Florida Rule of Appellate Procedure 9.331 changed (or should have changed) the landscape, and explain Little v. State, 206 So. 2d 9 (Fla. 1968), a case that has created confusion. From there, we outline Florida district court opinions that come to different conclusions on how to resolve intra-district conflict. Then, as an example of how we believe courts should address conflict, we explain how the 11th Circuit Court of Appeals deals with panel conflict. Finally, we propose a solution for this not-so-Little problem.

'Later Is Greater'

The legislature created the First, Second, and Third district courts of appeal in 1957. There were three judges on each court. (2) Since panels deciding cases consisted of three judges, the courts were sitting en banc in every case. There should have been no question, at that time, about whether a later panel could overrule a prior panel, and they did. (3)

In 1965, the legislature created the Fourth District, with three judges. At the same time, the legislature added two judgeships to each of the other districts, so that each of those districts had five. (4) The legislature subsequently added additional judgeships to each court and, in 1979, created the Fifth District, with six judges. (5) Even though the courts were no longer sitting en banc in each case, from 1966 to 1972, later panels continued to overrule prior ones. (6)

Then, in 1972, the constitutional provision governing the Supreme Court's jurisdiction was amended. For a brief period of Florida's history, the court had jurisdiction to review all conflicts, including intra-district conflicts. (7) Meanwhile, in the district courts, later panels were still overruling earlier panels, with no authority telling them they shouldn't. (8)

In 1978, the Commission on the Florida Appellate Court Structure proposed formalizing en banc proceedings in Florida district courts, issuing a telling report:

Presently, the district courts hold ad hoc conferences to discuss problems of conflicts between panels and to determine whether a panel should recede from a prior written opinion of the court. This proposal will formalize that process and provide a method for securing the input of counsel to resolve cases worthy of en banc determination. Although conflicts of decisions in cases decided by the same district court do not often arise, this recommendation will serve the dual purpose of reducing the Supreme Court's work load and furthering the goal of making the district courts the courts of last resort in most instances. (9) As a result, the Supreme Court created Fla. Rul. App. P. 9.331, effective 1980. (10) Rule 9.331 authorized en banc proceedings. According to the 1978 commission report, subsequent panels were not freelancing; the whole court was acting, although that was unstated and perhaps unknown to the public.

A Not-So-Little Problem

Much of the confusion regarding intra-district precedent can be traced to a single Supreme Court opinion issued in 1968, before the creation of the en banc rule: Little. In the case, the court held that, in the face of an intra-district conflict, the decision later in time controls. (11) At the time Little was decided, a later panel could overrule the precedent established by a prior panel, or at least everyone thought they could. The statement in Little reflected the state of law and practice at that time. Without the approach taken in Little, courts operating before the en banc rule would have been stuck with bad precedent--even if every member of the court thought it was wrong, unless, of course, Supreme Court review was available and undertaken.

To understand the confusion sparked by Little, one also needs to understand how the Supreme Court's jurisdiction evolved after the decision. Following up on the commission's work, Chief Justice Arthur England submitted a report to the legislature calling for changes to the court's jurisdiction. (12) Ultimately, a constitutional amendment was put to the voters that would alter the state's appellate structure and limit the Supreme Court's conflict jurisdiction by restoring the "another district" language. (13) Now the Supreme Court was no longer able to resolve intra-district conflicts.

'Older Is Better'

The creation of the en banc Rule 9.331 prompted judges to ask, finally, whether a three-judge panel could overrule a prior panel. The Supreme Court said no in In re Rule 9.331, 416 So. 2d 1127, 1128 (Fla. 1982), and explained:

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 prope-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. (14) Some district court panels have relied on these statements in In re Rule 9.331 to hold that "older is better." (15) Other panels, and the Supreme Court, have cited Little for the proposition that "later is greater."

In 1992, the Supreme Court accepted jurisdiction in State v. Walker (Walker II), 593 So. 2d 1049 (Fla. 1992) (mem.), to resolve a conflict between the First and Fourth districts. In Walker v. State (Walker I), 580 So. 2d 281, 281 (Fla. 4th DCA 1991), the Fourth District held that life felonies were not subject to a specific enhancement. The First District, however, held that the enhancement applied to life felonies in Watson v. State, 504 So. 2d 1267, 1270 (Fla. 1st DCA 1986), rev. den., 506...