En banc hearings and re-hearings of cases and issues in Florida's district courts of appeal are limited to two circumstances: 1) when the case or issue is of exceptional importance; and 2) when review by the entire court is necessary to maintain uniformity in the court's decisions. (1) This article considers the former circumstance-the question of exceptional importance. Alternatively, to put the question more precisely, what makes a case or an issue qualify as one of exceptional importance and what factors can and should the DCAs consider in making that determination?
The short answer to this question --often repeated by appellate practitioners and appellate judges alike with a knowing grin-is that a case is of exceptional importance whenever a majority of the judges on a DCA say that it is. (2) This short answer may be both glib and cynical, but there is a kernel of truth in it. However, the short answer does not help practitioners assess what cases might qualify for en banc review on the ground of exceptional importance. Furthermore, the short answer does not assist appellate judges in deciding what cases on their dockets should be decided by the entire court instead of a three-judge panel. Thus, an inquiry into the question of what makes a case or an issue one of exceptional importance is entirely appropriate.
The Problem of Data
An inquiry into the question of what makes a case or an issue one of exceptional importance must confront the problem of the available data. There are several factors at work here. First, the DCAs rarely publish their orders denying the parties' motions for rehearing en banc. Similarly, the DCAs generally do not publish orders denying unsuccessful requests by individual judges for hearing or rehearing en banc. It follows that there are relatively few published decisions explaining a court's rationale for deciding to hear a case en banc. Thus, the picture of cases in which en banc review based on exceptional importance is sought but not granted is substantially incomplete. Second, some of the opinions in cases that have been heard en banc do not state whether the rationale for en banc review was exceptional importance, decisional uniformity, or both. (3) Third, even in opinions where the court declares the basis for en banc review as exceptional importance, the court frequently does not explain the reasons that led the en banc majority to conclude that the case is of exceptional importance. (4) To compound the uncertainty, some opinions explain that a case was heard en banc because it was "of great public importance," confusing the ground for certifying questions to the Florida Supreme Court under FLA. R. APP. P. 9.030(a)(2)(A)(v) with the ground for en banc review under FLA. R. APP. P. 9.331(a). (5)
Indeed, the most complete discussions of when en banc review is appropriate based on a case's status as one of exceptional importance are frequently written by the judges objecting to en banc review. It may be that "history is written by the victors." (6) But most of the detailed and thoughtful discussions by Florida appellate judges concerning the meaning of exceptional importance in the context of en banc review have been written in dissenting opinions by judges who lost the vote. (7) This unusual circumstance raises the question about the extent to which one may rely on such pronouncements. To be sure, legal principles stated in dissenting opinions do not constitute binding precedent. (8) However, in the context of this inquiry, such pronouncements can help us to understand how individual appellate judges approach the question of what cases qualify as having exceptional importance. With these caveats in mind, the next section of this article considers expressions made by both the DCAs and individual judges concerning the meaning of exceptional importance.
What Makes a Case or Issue One of Exceptional Importance?
The text of Rule 9.331(a) is not helpful in determining what constitutes "a case of exceptional importance." (9) The term "exceptional" is defined as "[b]eing an exception; uncommon" and "[w]ell above average; extraordinary." (10) The term "important" is defined as "[s]trongly affecting the course of events or the nature of things; significant." (11) From these definitions, we may conclude that a case of exceptional importance must have a quality or qualities that set it apart from the average, run-of-the-mill case. But what qualities lend a case particular significance? And from whose perspective does one assess whether a case is exceptionally important?
Despite the vague nature of the term "a case of exceptional importance," the DCAs and individual judges have arrived at a broad consensus around a few basic propositions on its meaning. As an initial matter, because most litigants regard their case as important, courts should not determine the issue of exceptional importance based on the importance of the case to the litigants. (12)
Second, a case qualifies as one of exceptional importance only when the determination of the issue or issues in the case has significance beyond the case itself. In accordance with this idea, the First District has said that cases of exceptional importance include cases that 1) "may affect large numbers of persons" or 2) "interpret fundamental legal or constitutional rights." (13) In an earlier case, the First District said that a workers' compensation case was not of exceptional importance when the court's opinion did not have any impact upon the workers' compensation jurisprudence of the state. (14) By negative inference, one could reasonably conclude that a case could qualify as one of exceptional importance if it did have an effect on the state's workers' compensation jurisprudence. Numerous individual judges have expressed their agreement with these ideas about the meaning of exceptional importance. (15) Thus, there is broad agreement that a case qualifies as one of exceptional importance either when the decision has the potential to affect a substantial number of people or when it has substantial significance for the growth and development of the law. A corollary of this understanding of exceptional importance is the idea that a case does not qualify as one of exceptional importance when the panel decision simply misapplies settled precedent to particular facts. (16) In such a case, the panel decision is not likely to affect the rights of persons other than the litigants or to influence the jurisprudence of the state. Because a per curiam affirmance without a written opinion has no precedential value, such a decision is an unlikely candidate for en banc review as a case of exceptional importance. (17)
Third, as Judge Joe A. Cowart, Jr., of the Fifth District, now retired, has said, a case does not qualify as a case of exceptional importance simply because "the en banc majority disagrees with the reasoning or result of a panel majority." (18) Stating the proposition somewhat differently, Judge Larry G. Smith of...