Summary
questioning creation of these terms "out of whole cloth"
Summary of this case from State v. PetagineOpinion
No. 1D13–5458.
2014-04-11
In re Jane DOE 13–A, Appellant.
Id. at 657, n. 2. This Court has ordered en banc review on the basis of exceptional importance in numerous cases despite the lack of established criteria; however, we have not necessarily explained why the case was found to meet that standard. See Fla. Carry, Inc. v. Univ. of N. Fla., 133 So.3d (Fla. 1st DCA 2013) (challenging a university regulation prohibiting the storage of a firearm in a vehicle on the university's property); Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (addressing a constitutional challenge to a worker's compensation statute); Haridopolos v. Citizens for Strong Schools, Inc., 81 So.3d 465 (Fla. 1st DCA 2011) (discussing a constitutional challenge to the adequacy of the educational system); Hall v. Maal, 32 So.3d 682 (Fla. 1st DCA 2010) (holding that a marital ceremony without a proper license did not constitute a legally cognizable marriage); Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 945 So.2d 553 (Fla. 1st DCA 2006) (challenging the legality of placing a proposed constitutional amendment on the ballot); Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (discussing whether the Florida Opportunity Scholarship Program violated the state constitution); Brooks v. State, 816 So.2d 199 (Fla. 1st DCA 2002) (analyzing a defendant's entitlement to a belated appeal); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (addressing the sufficiency of verbal conduct to support a conviction for a lewd and lascivious act); State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988) (reviewing the propriety of a trial court's order directing a child sexual battery witness to submit to a physical examination); Marr v. State, 470 So.2d 703 (Fla. 1st DCA 1985) (reviewing the appropriateness of a jury instruction that, where there were no witnesses to the alleged act, the testimony of a rape victim should be rigidly scrutinized). The “luck of the draw” did not place me on this panel. 5 Accordingly, I refrain from detailed comment on the merits as addressed by the divergent opinions of the three-judge panel. 6 Nonetheless, In re: Jane Doe 13–A is that case where “the stakes are unusually high” and “the law is especially unclear.” It is worthy of consideration by the entire court for the reason that the 2011 amendment to the Parental Notice of Abortion Act codified a clear and rigorous appellate standard of review which should not be diminished.
An appeal from an order of the Leon County Circuit Court. Martin A. Fitzpatrick, Judge.
Joshua P. Brian, Tallahassee, for Appellant.
ORDER ON MOTION FOR HEARING EN BANC
A judge of this court requested that this cause be considered en banc in accordance with Florida Rule of Appellate Procedure 9.331(c). All judges in regular active service have voted on the request. Less than a majority of those judges voted in favor of hearing en banc. Accordingly, the request for hearing en banc is denied. LEWIS, C.J., WOLF, BENTON, VAN NORTWICK, PADOVANO, ROBERTS, CLARK, WETHERELL, and MARSTILLER, JJ., concur.
PADOVANO, J., concurs in an opinion in which VAN NORTWICK and CLARK, JJ., join.
THOMAS, ROWE, RAY, SWANSON, MAKAR, and OSTERHAUS, JJ., dissent.
THOMAS, J., dissents in an opinion in which RAY, SWANSON, and OSTERHAUS, JJ., join.
ROWE, J., dissents in an opinion in which THOMAS, RAY, SWANSON, MAKAR, and OSTERHAUS, JJ., join.
SWANSON, J., dissents in an opinion in which THOMAS, RAY, and OSTERHAUS, JJ., join.
MAKAR, J., comments with opinion.
PADOVANO, J., concurring.
I join in the decision to deny en banc review without comment on the merits of this case but write to express my view, once again, that the en banc rule should not be construed to authorize a non-panel judge to publish a dissent from an order denying an internal motion for a hearing en banc. As I have previously stated in Sturdivant v. State, 84 So.3d 1053 (Fla. 1st DCA 2010) (Padovano, J., concurring), I believe that the practice of publishing such an opinion undermines the state constitutional system of deciding cases by three-judge panels, enables judges to publicly prejudge issues that are not before them and causes significant harm to the collegiality of the court.
Recently, a federal appellate judge suggested that the practice of issuing opinions on orders denying en banc review has become more entrenched in the law and that judges and lawyers should now refer to these opinions as “concurrals” and “dissentals.” See Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601 (2012). According to Judge Kozinski's nomenclature, an opinion by a non-panel judge criticizing the court's decision to deny en banc review would be known as a “dissental,” and an opinion written to explain why the en banc motion was denied, would be known as a “concurral.”
Whether these are good or bad terms is not for me to say. In my view, the significant fact is that someone found it necessary to invent a vocabulary for these opinions at all. It seems to me that the terms “concurral” and “dissental” are terms that were created out of whole cloth in an effort to lend an air of legitimacy to the practice of allowing commentary by judges who were not assigned to the case. But the practice is not legitimate in my view, and I do not think that it will become any more legitimate simply by giving it a name.
When an internal motion for an en banc hearing is denied, the case is no longer before the full court. The very point of an order denying a motion for an en banc hearing is to hold that the panel decision or the proposed panel decision will stand as the decision of the court and that it will not be open to further consideration by other members of the court. A judge who did not serve on the panel has no greater right to comment on the case at that point than he or she would have to comment on a panel decision that had not been the subject of an en banc motion.
To persist in disagreement to the point of publishing a grievance against the full court for refusing to take up the case undermines the authority of the court's decision. Perhaps one could argue that a judge should be allowed to explain why he or she believed that the case really did present a question of great public importance. This argument has some appeal on the surface but it is not grounded in reality. Judges do not write these opinions because they want to make an argument about the procedural mechanism by which a case should be decided. That is a matter of very little interest to anyone. It would be more accurate to say that the procedural issue (whether the case should be heard by a panel or by the full court) is merely a vehicle that justifies the presentation of an opposing view on the merits of the issue decided by the panel.
As I mentioned in Sturdivant, the practice of writing opinions on orders denying en banc review is more prevalent in federal appellate courts than it is in Florida appellate courts. It is a practice that has been criticized by many respected federal appellate judges for more than fifty years. The most compelling of these criticisms are set out in the Sturdivant opinion. Since then, some federal appellate judges have continued to stand against the idea that a non-panel judge should be allowed to publish an opinion in a case in the face of an order denying en banc review. For example, in United States v. Shaygan, 676 F.3d 1237 (11th Cir.2012), Judge Pryor restated Judge Friendly's view that a denial of a request for en banc review should be followed by silence, and that it should not be used as an opportunity to issue an advisory opinion, a request for review by a higher court or a press release.
The Florida courts should refrain from adopting the practice of the federal courts, not only because it is unwise, but also because our state court system is very different from the federal system. Nothing in the federal constitution addresses, much less limits, the way decisions are made in federal appellate courts. They are not created by, or even mentioned in, the United States Constitution. Article III, section 1 states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Thus, the Constitution places no limit on the composition of the federal appeals courts or the number of judges that will be necessary for a decision in a case. The practice of publishing opinions on en banc orders in federal courts, as destructive as I believe it is, does not violate the Constitution.
In contrast, the authority of the district courts of appeal in Florida is derived directly from the state constitution. Article V, section 4(a) provides that “[t]here shall be a district court of appeal serving each appellate district” and that “[e]ach district court of appeal shall consist of at least three judges.” Furthermore, the constitution expressly limits the way cases are decided in state appellate courts. Article V, section 4(a) goes on to state that “[t]hree judges shall consider each case,” and that “the concurrence of two shall be necessary to a decision.” This section leaves open the possibility that a district court of appeal may have more than three judges. However, it does not suggest that any of the other judges who happen to be serving on a district court of appeal may have a right to participate in a case. To the contrary, it states rather explicitly that the decision shall be made by the three judges who are assigned to the case.
We have an opportunity in the state courts to avoid the ill effects of the federal practice of publishing dissents from the denial of en banc motions and I believe that we should take advantage of that opportunity. Florida appellate judges should think about the harm we will do to our system of justice if we allow a judge who was not assigned to the panel to write an opinion commenting on a case the full court has decided not to hear. That may be satisfying to the judge writing the opinion, but it is destructive to the mission of the judiciary as a whole.
I wish to make it clear that my objection goes more to the procedure that enables a judge to write an opinion from the denial of an en banc motion than it does to any particular judge who elects to employ that procedure. As I mentioned in Sturdivant, the First District Court of Appeal adopted a policy of allowing such opinions in 2008 after previously prohibiting them in 2006. I question the constitutionality of this policy for the reasons stated here and in the Sturdivant opinion, but I understand that a judge has a right to publish such an opinion, at least under the local procedures in effect in this court.
But this is not entirely about the rights of judges. We are here to do justice for the litigants, not to exercise our own rights. There are many instances in which the rights of the litigants and the effectiveness of the judiciary as a whole are better served by the exercise of judicial restraint. No matter how tempted we might be, we should restrain ourselves from commenting on issues that are not before us, issues that are no longer before us, issues that are not material to the disposition of a case and, as is pertinent here, issues that our own court has decided not to consider.
For these reasons, and those set forth more fully in my concurring opinion in Sturdivant, I believe that judges should refrain from writing opinions on orders denying internal motions for en banc review. If an internal motion for en banc review is denied, the policy should be to list the vote of each judge without explanation.
THOMAS, J., dissenting on denial of hearing en banc.
I respectfully dissent
from the court's denial of the en banc motion pursuant to Florida Rule of Appellate Procedure 9.331, because this case is of exceptional importance, addresses parents' fundamental constitutional and statutory rights to receive notification of their daughter's intent to undergo an abortion, and the panel decision incorrectly reverses the trial court's order requiring parental notice. In addition, we should have heard this case en banc and addressed the impact of the 2011 amendments to the Parental Notice of Abortion Act. Furthermore, we should not allow a panel decision to issue in a case of this magnitude, where there is no binding opinion joined by two judges, and thus no guidance is provided to the bench, bar or public.
This court previously, and correctly, decided to allow judges to dissent from the denial of an en banc motion. It is a common practice in federal and state courts. Here, where this is a deeply divided court on an issue of great public importance, the public benefits when it is informed why a judge supports en banc review.
The two concurring opinions which result in the reversal of the trial court's order both fail to properly apply the 2011 statutory reforms, and thus wrongfully deprive the parents of notice. One of those opinions places the burden on the trial court to justify its ruling, rather than on the minor who had the burden of persuasion below, contrary to our precedent. See Mitchell v. XO Communications, 966 So.2d 489 (Fla. 1st DCA 2007). There, we held that a decision in favor of the party without the burden of persuasion below (here, the parents) need not be supported by competent, substantial evidence. The other concurring opinion essentially disregards the legislative changes to the parental notice law, relegated to a footnote, and instead relies on pre–2011 case law to justify reversing the trial court's thoughtful and correct order. Thus, we should have heard this case en banc to address the 2011 statutory reforms, and affirm the trial court's order.
The 2011 legislation enacted two important changes to the parental-notice statute: (1) it significantly increased a minor's burden of persuasion in the trial court to obtain an abortion without parental notice; and (2) it restricted this court's authority to reverse a trial court's order upholding the parents' right to notice, by amending the applicable appellate standard of review. It is critical to realize that in a parental notice case, the law demands that parents receive notice of their minor daughter's intent to obtain an abortion, unless the minor proves by clear and convincing evidence that her parents should not be informed.
In Florida, the Legislature has addressed the parental notice standard, not once, but three times, first in 1999. In 2003, the Florida Supreme Court held that the Legislature has no constitutional authority to require that parents receive notification under Florida's privacy amendment. N. Fla. Women's Health & Counseling Srvs., Inc. v. State, 866 So.2d 612 (Fla.2003). That decision was not based on federal constitutional law, because the United States Supreme Court in Ohio v. Akron Center for Reproductive Health recognized that parents have a right to be informed of their minor child's intent to obtain an abortion. 497 U.S. 502, 519–21, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990). In fact, the Legislature was not required under federal constitutional law to provide any judicial bypass procedure; thus, it certainly is free to narrowly define those cases in which parents may be deprived of notice.
In 2004, based on an amendment submitted by the Legislature, the Florida electorate amended its organic law to authorize that the Legislature provide by general law to require parental notice of a minor child's decision to obtain an abortion. This amendment further required that the Legislature enact a process for a “judicial waiver” of parental notification. Art. X, § 22, Fla. Const. This organic law does not, however, define the limits of parental rights, the nature of the waiver procedure, or the limits of the minor's right to proceed without parental notice.
In 2005, the Legislature once again implemented the parental right to notice. To strengthen the parental right to notification prior to a minor child obtaining an abortion, in 2011 the Legislature amended the Act to require the minor child to prove by clear and convincing evidence that she is either “sufficiently mature to decide whether to terminate her pregnancy” or that “notification of a parent ... is not in the best interest” of the child. § 390.01114(4)(c)-(d), Fla. Stat. In addition, trial court decisions upholding the parents' right to notice must be affirmed by this court, unless we determine that the trial court abused its discretion; we are specifically prohibited from reweighing the evidence supporting the trial court's ruling. § 390.01114(4)(b)(2), Fla. Stat.
Here, the trial court properly found that the minor child did not provide clear and convincing evidence that she should be permitted to obtain an abortion, without providing notice to her parents. On review in this court, the panel decided that the trial court erred in requiring parental notice. As noted, however, the two concurring opinions do not constitute an opinion of this court. A judge of this court then moved that we hear this case en banc. This motion failed by garnering nine “no” votes and six “yes” votes, despite the obviousimportance of the issue. In my view, rather than allow a decision in this case to be decided without any binding opinion, we should have heard this case en banc. Furthermore, we should have issued a binding opinion which incorporated Judge Makar's views, which properly applied the 2011 statutory amendments to the Parental Notice of Abortion Act and would have affirmed the trial court.
Parents are due proper deference in their right to be informed of their minor daughter's intent to undergo any medical procedure. The Legislature certainly thinks parents are due this deference, as did the Florida electorate when it amended its organic law. Unfortunately, the court today has decided otherwise both in the panel decision and the decision denying a judge's motion to consider this case in an en banc hearing. Thus, I respectfully dissent from the court's decision denying the motion to hear this case en banc.
ROWE, J., dissenting on denial of hearing en banc.
I respectfully dissent from the decision of the Court to deny rehearing en banc. This case affects the fundamental legal and constitutional rights of parents in this State to receive notice that their minor child is seeking an abortion. Art. X, § 22, Fla. Const.; § 390.01114, Fla. Stat. (2013). The people of Florida considered this right so fundamental that they voted by a majority of 64.7% to secure the right through passage of an amendment to the state constitution. See Fla. Dep't of State, Div. of Elections, http:// election. dos. state. fl. us/ elections/ resultsarchive/ Index. asp? ElectionDate=11/2/2004. For this reason, I believe this case is one of exceptional importance and meets the criteria for en banc consideration by the Court.
Florida Rule of Appellate Procedure 9.331 provides that district courts may order rehearing en banc if (1) it is necessary to maintain uniformity in the decisions of the court or (2) if the case is one of exceptional importance.
Exceptional importance is left undefined in the rule, and only a handful of Florida decisions expressly address the factors which may render a case “exceptionally important.” See Ortiz v. State, 24 So.3d 596, 618 (Fla. 5th DCA 2009) (Cohen, J., dissenting) (“The term ‘exceptional importance’ is not defined in the rules of appellate procedure, yet every member of this court realizes that only a select few cases will ever meet this threshold.”). The Fifth District has noted that cases have been deemed exceptionally important when the original panel decision conflicted with a rule of law announced by the supreme court or another district court, when the case was important to the jurisprudence of the State as a judicial precedent, or when the decision impacted a large share of the community. Id. The Third District has suggested that cases should be subject to en banc review only if:
Accordingly, the decision whether to grant en banc review based on exceptional importance centers on whether the case, as opposed to the decision, is one of exceptional importance. See Univ. of Miami v. Wilson, 948 So.2d 774, 788 (Fla. 3d DCA 2006) (Shepherd, J., concurring).
(1) the outcome of the case (or its notoriety) is of greater moment or impact within the community rather than its effect upon the law of the state, and either (a) the case is important beyond the effect it will have on the litigants or (b) will affect the ability of other potential litigants to seek their own remedies, or (2) the outcome of the case may reasonably and negatively influence the public's perception of the judiciary's ability to render meaningful justice.
Univ. of Miami v. Wilson, 948 So.2d 774, 791 (Fla. 3d DCA 2006) (emphasis in original); see also Fla. Dep't of Agric. & Consumer Servs. v. Lopez–Brignoni, 114 So.3d 1135, 1136 (Fla. 3d DCA 2013) (Logue, J., dissenting).
This Court has not expressly articulated standards for determining whether a case is exceptionally important. See Childers v. State, 936 So.2d 585, 610–14 (Fla. 1st DCA 2006) (Ervin, J., concurring and dissenting). However, we have previously held that a case addressing the termination of parental rights was one of exceptional importance because it affected the rights of parents and children in this State. In the Interest of D.J.S., 563 So.2d 655, 657 (Fla. 1st DCA 1990)(en banc) (reviewing en banc a one-paragraph per curiam opinion reversing a trial court's order terminating parental rights). In determining that D.J.S. was a case of exceptional importance, we relied on the following principles:
The federal cases interpreting the “exceptional importance” basis for en banc consideration under Rule 35, Federal Rules of Appellate Procedure, suggest two general types of cases that the federal courts have found worthy of en banc review: (1) cases that may affect large numbers of persons, and (2) cases that interpret fundamental legal or constitutional rights. 24 Idaho L.Rev. 255, 265 (1987–1988).
In the related area of cases involving “questions of great public importance,” Article V, Section 3(b)(4), Florida Constitution, the following have recently been certified to the Florida Supreme Court: Adoption of Doe: Doe v. Roe, 543 So.2d 741 (Fla.1989) (prebirth conduct of biological father as related to abandonment), question answered, 543 So.2d 741 (Fla.1989); and Padgett v. Department of Health and Rehabilitative Services, 543 So.2d 1317 (Fla. 5th DCA 1989) (prospective abuse, neglect, and abandonment).
Id. at 657, n. 2. This Court has ordered en banc review on the basis of exceptional importance in numerous cases despite the lack of established criteria; however, we have not necessarily explained why the case was found to meet that standard. See Fla. Carry, Inc. v. Univ. of N. Fla., 133 So.3d (Fla. 1st DCA 2013) (challenging a university regulation prohibiting the storage of a firearm in a vehicle on the university's property); Westphal v. City of St. Petersburg, 122 So.3d 440 (Fla. 1st DCA 2013) (addressing a constitutional challenge to a worker's compensation statute); Haridopolos v. Citizens for Strong Schools, Inc., 81 So.3d 465 (Fla. 1st DCA 2011) (discussing a constitutional challenge to the adequacy of the educational system); Hall v. Maal, 32 So.3d 682 (Fla. 1st DCA 2010) (holding that a marital ceremony without a proper license did not constitute a legally cognizable marriage); Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 945 So.2d 553 (Fla. 1st DCA 2006) (challenging the legality of placing a proposed constitutional amendment on the ballot); Bush v. Holmes, 886 So.2d 340 (Fla. 1st DCA 2004) (discussing whether the Florida Opportunity Scholarship Program violated the state constitution); Brooks v. State, 816 So.2d 199 (Fla. 1st DCA 2002) (analyzing a defendant's entitlement to a belated appeal); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (addressing the sufficiency of verbal conduct to support a conviction for a lewd and lascivious act); State v. Diamond, 553 So.2d 1185 (Fla. 1st DCA 1988) (reviewing the propriety of a trial court's order directing a child sexual battery witness to submit to a physical examination); Marr v. State, 470 So.2d 703 (Fla. 1st DCA 1985) (reviewing the appropriateness of a jury instruction that, where there were no witnesses to the alleged act, the testimony of a rape victim should be rigidly scrutinized).
This case is exceptionally important because it affects the fundamental legal and constitutional rights of parents to be notified that their minor child is seeking an abortion. Art. X, § 22, Fla. Const.; § 390.01114, Fla. Stat. (2013). In 2004, the parental notification amendment was adopted, requiring parents to be notified before a minor terminated her pregnancy and directing the Legislature to create a process for judicial waiver of the notification requirement. Following passage of the amendment, the Legislature immediately set about enacting statutory requirements to guide the courts in determining whether to grant or deny a waiver of the notification requirement. See Ch.2005–52, § 2, Laws of Fla.
The current version of the statute requires a parent or legal guardian of a minor seeking an abortion to be notified forty-eight to seventy-two hours before the abortion is performed. § 39.01114(2), Fla. Stat. (2013). A minor has a right to seek judicial waiver of the notification requirement under certain circumstances. § 39.01114(4), Fla. Stat. (2013). However, the statute establishes a high evidentiary burden that must be satisfied before a minor seeking an abortion may obtain a judicial waiver. The statute provides a detailed list of factors that must be proven by clear and convincing evidence before the trial court can order waiver of parental notification. § 39.01114(4)(c), Fla. Stat. (2013). A minor must not only prove that she is intelligent and sufficiently mature, but she must also establish by clear and convincing evidence that her parents' right to be notified that she is seeking an abortion is not in her best interests. In re Amendments to Fla. R. of Juv. P., 75 So.3d 216 (Fla.2011); § 39.01114(4)(d), Fla. Stat. (2013).
As explained by Judge Makar in his dissent from the panel decision, the Florida Legislature amended the Parental Notification of Abortion Act in 2011 to impose a highly deferential standard of appellate review of a trial court's decision to deny judicial waiver of the parental notification requirement. See Ch.2011–227, § 1, Laws of Fla. Due to the non-adversarial nature of such proceedings, the Legislature required that appellate review of the denial of a judicial waiver be conducted under an abuse of discretion standard, not under a weight of the evidence standard, as had been applied in cases construing earlier versions of this statute. See§ 390.01114(4)(b) 2., Fla. Stat. (2013); In re Doe, 46 So.3d 1172 (Fla. 4th DCA 2010) (holding that the sufficiency of the evidence supported the minor's request for waiver of parental notification); In re Doe, 973 So.2d 548 (Fla. 2d DCA 2008) (holding there was insufficient evidence to show that the minor was sufficiently mature to waive the notification requirement and to show that the waiver was in her best interests). The split panel decision in this case is the first from this Court since the statute was amended to address this highly deferential review standard. Because the panel decision fails to properly apply the statutorily mandated standard of review, I believe that en banc review is warranted. Accordingly, I respectfully dissent from the decision of the majority of this Court to deny rehearing en banc.
SWANSON, J., dissenting on denial of hearing en banc.
I write this “dissental”
from the Court's decision to deny en banc considerationpursuant to Florida Rule of Appellate Procedure 9.331. I elect to write because the inability of the three-judge panel to provide a clear analysis of the parental bypass appellate review standard warrants en banc consideration. Further, the failure of our whole court to address and give deference to the proper appellate standard of review concerning parental notification is a mistake.
A “dissental” is a colloquial term recently coined by Judge Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit. See In re Corrinet, 654 F.3d 1141, 1146 (9th Cir.2011) ( “Kozinski, C.J., dissental.”). See generally Alex Kozinski & James Burnham, I Say Dissental, You Say Concurral, 121 Yale L.J. Online 601 (2012).
I agree with the views expressed by Chief Judge Kozinski when he wrote:
“Cases arguably warranting en banc review are those in which the stakes are unusually high or the law is especially unclear.” [FN 63] It does honor to the law, promotes justice, and serves the interests of an informed public when citizens learn that appellate judges have given difficult and important cases exacting scrutiny—not just one judge or even the three-judge panel, but an entire court of appeals.
The “luck of the draw” did not place me on this panel.
Kozinski & Burnham, supra note 1, at 611–12 (quoting Indraneel Sur in How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006 Wis. L.Rev. 1315, 1318.)
Accordingly, I refrain from detailed comment on the merits as addressed by the divergent opinions of the three-judge panel.
Id. at 607.
Nonetheless, In re: Jane Doe 13–A is that case where “the stakes are unusually high” and “the law is especially unclear.” It is worthy of consideration by the entire court for the reason that the 2011 amendment to the Parental Notice of Abortion Act codified a clear and rigorous appellate standard of review which should not be diminished.
The ramifications of this case are far reaching and impact future Jane Does, their parents, and their unborn children. Insofar as I am concerned, further discussion by me about the merits, or lack thereof, of dissental opinions is a distraction. I leave that for another time. (Judge Kozinski would go further, observing that “[d]issentals have become a way for judges to express a view on the merits of important cases decided by their courts when the luck of the draw does not assign them to the original three-judge panel.” Id.)
At stake here is not the minor child Doe's right to choose to terminate her pregnancy. All would undoubtedly agree the abortion most probably has taken place and Doe was able to make that choice without requirement that her parents be informed of the decision.
At this point, what is at stake is one of the foundational principles of judicial restraint: that an appellate court will not substitute its view of the facts for that of the trial court when the trial court enjoys the vantage point of observing the demeanor and credibility of the witnesses. This has even greater implications in the present case, since the 2011 amendment to the Parental Notice of Abortion Act imposed a highly deferential standard of appellate review. § 390.01114(4)(b) 2., Fla. Stat. (2013). As Judge Makar observes, no appellate court has yet explored the application of this standard,
or the “outer limits” of the deference it imposes,
Slip op. at 38.
making the issue one of first impression in Florida. The proper employment of this standard of review is critical because the ex parte nature of the judicial waiver proceeding deprives parents of any opportunity to be heard, even though they have a fundamentalconstitutionally protected interest in the care and upbringing of their children. I endorse Judge Makar's reference to Justice Kennedy's remarks in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990), as underscoring this principle.
Id. at 45.
An outlying opinion from this Court, consisting of two disparate concurring opinions and a vigorous dissent does little to protect these interests or serve to enlighten the bench and bar. Instead, it adds to confusion, since the opinion provides no guideposts for future similar appeals.
Id. at 54–55.
For these reasons, I am firmly of the view that en banc consideration of this case is critical. This case is of “exceptional importance [and] necessary to maintain uniformity in the court's decisions.” Fla. R.App. P. 9.331. Accordingly, I submit my dissental to the denial of the motion for en banc review.
MAKAR, J., commenting on the denial of hearing en banc.
Whether we accepted this case for en banc review or not, we fall short by releasing a decision with no precedential majority opinion. Of the thousands of words we three panel judges have written in our separate opinions (putting aside dissentals, the concurral, and this commental), not one has any precedential value: only the word “reversed” in the per curiam opinion announcing the result of the panel's handiwork does. Nothing else is decided; the law is left unclear. This is an awkward result,
one that en banc review could correct, but only if eight of us could agree on how the legislature intended appellate courts to apply the 2011 statutory revisions.
A district court decision consisting of three divergent opinions with a fourth opinion explaining the result is not unprecedented, but rare. See, e.g., Beal Bank, SSB v. Almand & Assocs., 710 So.2d 608 (Fla. 5th DCA 1998), decision approved in part, quashed in part, 780 So.2d 45 (Fla.2001).
The lack of a unified interpretation of the statute destabilizes the law of our District, there being no binding legal reasoning for the result reached and thereby no direction for future cases.
Scott D. Makar, Browning v. Florida Hometown Democracy, Inc.: A Case Study in Judicial Opinion Writing, 41 Stetson L.Rev. 477, 494–95 (2012) (“This result is unfortunate for the victors in the litigation because they won the battle by having the statute declared unconstitutional, but they did not convince a majority of a central rationale for doing so.”) (hereafter Judicial Opinion Writing ).
The parties,
though clearly knowing who won and lost, do not know with certainty which legal principles prevailed and will be applicable in future cases. In this regard, an additional institutional function of opinion writing is to “at all times consider the effect the opinion will have on [the court] as an institution charged with responsibilities for setting precedent and for defining law.” Thus, a court's written opinion must be written with consideration of its consequences in future cases, its consistency with legal precedents and principles, and its coherence to those who are governed by it and turn to it for guidance.
Of course, there is only one party in this case.
Given a lack of this coherence, not only must litigants, lower courts, and the general public speculate on how the judicial bypass statute is to be applied, members of future three judge panels assigned to such cases in our District will be left to their own individual interpretations of the law, making it likely that outcomes will have elements of serendipity and unpredictability. The resulting “uncertainty leaves open the potential for future litigation to depart from the pluralities' opinions and follow another path.”
Judicial Opinion Writing, supra note 2, at 494 (footnotes omitted).
Id. at 495.
The results of parental bypass cases, in most instances, are never publicly known and, if resolved on appeal via an unpublished order, are not within the awareness of non-panel judges. This case differs because the panel members prepared three written opinions that were pre-released internally and subject to close scrutiny, resulting in a request for an en banc vote. When a case like this one surfaces that creates the potential to resolve uncertainty in the law or provide a clearer understanding of a statute's application, but exits the appellate system with even greater uncertainty and a potentially more unpredictable application, that is not a good thing. And when no majority opinion exists, and no legal question has been certified,
appellate review in the Florida Supreme Court is foreclosed, ensuring that uncertainty and doubt continues.
The Fifth District panel certified questions in Beal Bank, SSB v. Almand & Associates, 710 So.2d 608 (Fla. 5th DCA 1998), which the Florida Supreme Court rephrased and answered in 780 So.2d 45 (Fla.2001)
A final note. When invited to comment on a recent Florida Supreme Court case in which I was the losing advocate, I wrote—not about the merits—but about that court's inability to achieve a majority position.
I bemoaned the court's issuance of two three-judge plurality opinions, a concurring in result only opinion, and a dissent, which resulted in no precedent. Sound familiar? I wrote the article from the perspective of an appellate lawyer, but from the judicial side I now see how things work, which are not much different from when any fifteen people get together to make a group decision. Expecting seven justices, let alone fifteen district judges, to herd themselves into voting blocs producing at least one majoritarian legal position is overly-optimistic, some might say Pollyannaish. “Courts frequently fail to achieve a majority vote in closely divided cases, so it cannot be considered a judicial sin to fail to achieve a precedential opinion.”
Judicial Opinion Writing, supra note 2, at 476. The feature in Stetson Law Review is known as “Last Words on Recent Developments.” The case was Browning v. Florida Hometown Democracy, Inc., PAC, 29 So.3d 1053 (Fla.2010).
But hope springs eternal, which is why cases such as this one deserve greater judicial effort to produce a precedent versus just a result.