SHEPHERD, J., concurring.
I join the court's denial of Petitioner University of Miami's Motion for Rehearing En Banc and/or Certification of a Question of Great Public Importance. Because I perceive an undisciplined practice of some appellate counsel to seek en banc review of arguments rejected in panel decisions of this court, I write to emphasize why I believe denial is appropriate in this case.
In this, I do not mean to single out movant's counsel or imply that movant engaged in an egregious violation of the Rules of Appellate Procedure. Indeed, I believe that the appellate courts of this state have been at times similarly unchaste. See, e.g., Dozier v. Wild, 659 So. 2d 1103 (Fla. 4th DCA 1995)("We grant rehearing [en banc] to correct the statement of facts and therefore substitute the following for our original opinion."); Slemp v. City of N. Miami, 515 So. 2d 353, 354 (Fla. 3rd DCA 1987) (permitting en banc review to consider an alternative argument raised by appellee for affirmance). Nevertheless, cases such as this should provide a reminder to litigants that motions for rehearing en banc should be submitted only after careful consideration of merits of such a motion.
In its motion, the University urges that en banc treatment is warranted because an "issue" of exceptional importance regarding the proper treatment of the presuit notice requirement has been raised. This argument misses the point of a motion for rehearing en banc. For the reasons expressed below, I believe a motion for rehearing en banc alleging exceptional importance must establish that the case, rather than an issue in the case, is of exceptional importance. I begin with the text of the rule. Florida Rule of Appellate Procedure 9.331(d) authorizes motions for rehearing en banc in but two circumstances: (1) "[where] such consideration is necessary to maintain uniformity in the court's decisions," or (2) "the case is of exceptional importance." Fla. R. App. P. 9.331(d) (emphasis added). In the latter case, Rule 9.331(d)(2) requires the moving party's counsel unequivocally to state in the motion: "I express a belief, based on a reasoned and studied professional judgment, that the panel decision is of exceptional importance." Fla.R.App.P. 9.331(d)(2) (emphasis added). Nothing in the text of the rule suggests that en banc review may be considered based solely on an issue raised by the litigants. Applying ordinary meaning to the words used, I read the rule to mean there must be something about the case itself, rather than an issue decided in the case, which requires resolution by the entire court en banc.
In "law," a "case" is "[a]n action or suit or just grounds for an action." American Heritage Dictionary 244 (Houghton Mifflin Co., 2d ed. 1985). A "decision" is defined as: "1. [t]he passing of judgment on an issue under consideration. 2. The act of reaching a conclusion or making up one's mind. 3. A conclusion or judgment reached or pronounced: verdict." Id. at 372.
My conclusion is supported by the history, development, and commentary that have followed the rule since its creation. Florida's district courts of appeal were created effective July 1, 1957. Art. V, § 5, Fla. Const. (1957). The en banc rule for use by Florida's district courts of appeal was not promulgated until 1979 and took effect January 1, 1980. In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 374 So. 2d 992 (Fla. 1979)modified, 377 So. 2d 700 (Fla. 1979). At that time, the new rule was crafted carefully and explicitly. En banc sittings of the district courts of appeal were limited solely for the purpose of considering intra-district conflict. Id. at 992. Before January 1, 1980, this authority resided in the Florida Supreme Court. See Art. V, § 3(b)( 3), Fla. Const. (1979)("JURISDICTION — The supreme court: . . . May review by certiorari any decision of a district court of appeal . . . that is in direct conflict with any district court of appeal or the supreme court on the same question of law. . . ."); see also In re Rule 9.331, 374 So. 2d at 995 (Boyd, J., dissenting). As the new en banc rule was wending its way to final approval, the Judicial Council of Florida proposed, and the Legislature in November 1979 placed on the ballot, a substantial revision to the jurisdiction of the Florida Supreme Court that included the elimination of intra-district conflict as a ground for jurisdiction in the Florida Supreme Court. See Judicial Council of Florida, Twenty-Fifth Annual Report 7-9 (1980). Adopted overwhelmingly by the voters in a special election held on March 11, 1980, the revision drastically curtailed the jurisdiction of the Florida Supreme Court. See Arthur J. England, et al, An Analysis of the 1980 Jurisdictional Amendment, 54 Fla. Bar J. 406 (1980). The express purpose of these changes was to curtail the Florida Supreme Court's review authority so as to ensure the "statewide importance of legal issues" resolved by that court. Arthur J. England, et al, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 Fla. L. Rev. 147, 161 (1980). It is thus clear from the historical record that the Supreme Court Appellate Commission and the Judicial Council of Florida were working in tandem, not only to reduce the Supreme Court's workload, but also in most instances to further solidify the district courts of appeal as the courts of last resort in their areas.
The rule was adopted upon the recommendation of the Florida Supreme Court Appellate Commission, a commission created in August 1978 by the Chief Justice of the Florida Supreme Court. The rule as proposed by the Commission also authorized the district courts of appeal to consider " questions of exceptional importance." Report of the Supreme Court Commission on the Florida Appellate Court Structure, 53 Fla. Bar J. 274, 279 (May 1979) (emphasis added). The Florida Supreme Court rejected this portion of the Commission recommendation. See In re Rule 9.331, 374 So. 2d at 992.
The Judicial Council of Florida was a statutory body charged at the time with recommending to the Legislature such changes in the "organization, jurisdiction and operation" of the Florida courts as may be required. See § 43.15, Fla. Stat. (1953).
The responsibility of the district courts of appeal to set the law in their districts was reaffirmed just two years later in 1982 when the Florida Supreme Court was called upon by the Conference of District Court Judges to answer some practical operational questions that had arisen in the application of the recently adopted rule, namely whether one three-judge panel had the authority on its own to retreat from decisions of other panels on the same point of law and the number of judges needed to call an en banc hearing. Responding in the negative to the first question and holding that a majority of those actually participating was sufficient for the second, the court reflected as follows on the philosophical underpinnings of this state's appellate structure:
First and foremost, we must emphasize that a direct and important interrelationship exists between the en banc rule and the new [1980] constitutional amendment which limits Supreme Court jurisdiction.
See [A]rt. V, § 3, Fla. Const. The amendment substantially strengthened the position of the district courts of appeal as final appellate courts. The en banc rule is an essential part of the philosophy of the constitutional scheme embodied in the new amendment because the Supreme Court no longer has jurisdiction under the amendment to review
intra-district conflict.
. . . .
"[In adopting the new en banc rule], [t]his Court agreed with the [recommendation of the Supreme Court Appellate Structure] commission and concluded that an en banc rule as part of Florida's appellate structural scheme was appropriate and constitutional, particularly under the philosophy that the district courts should, to the extent possible, be final appellate courts.
. . . .
[Thus], the view that one district court panel is independent of other panels on 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.
In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure,
416 So. 2d 1127, 1127-28 (Fla. 1982) (emphasis added). Two years later the Florida Supreme Court added to the rule the ability of the district courts of appeal to consider "cases . . . of exceptional importance."
The Florida Bar Re: Rules of Appellate Procedure,
463 So. 2d 1114, 1115 (Fla. 1984). In this historical context, I find it unlikely that the Florida Supreme Court was thinking expansively, especially since just four years earlier it had rejected a proposed rule that would have on its face authorized the consideration by the district courts of appeal of "issues" of exceptional importance.
See supra p. 4 n. 3. This conclusion is confirmed in my mind by the fact that from the date of adoption of the present appellate structure, the Florida Supreme Court has had the jurisdiction to consider matters of "great public importance", Art. V, § 3(b)(4),
and invariably accepted jurisdiction of almost any question certified to it under this rule since 1957.
See, e.g., Arthur J. England Robert C. Williams,
supra p. 6 n. 5, at 710 (noting that the justices of the Florida Supreme Court "generally respect the judgment of the district court judges as to whether a matter is sufficiently important to warrant review by the state's highest tribunal" and had not declined such a certification since the 1980 amendments took effect).
When the first jurisdictional provisions as they would pertain to the Florida Supreme Court under the new constitutional arrangement became operational on July 1, 1957, this provision of the Florida Constitution authorized the Florida Supreme Court to consider any decision of a district court of appeal certified to be "of great public interest." Art. V, § 4( 2), Fla. Const. (1957). The word "importance" was substituted for the word "interest" in the proposed amendments adopted on March 11, 1980. Fla. S.J.R. 20-C (Spec. Sess. 1979), reprinted in Arthur J. England Richard C. Williams, Florida Appellate Reform: One Year Later, 54 Fla. Bar J. 704. The change expanded the reach of the rule. See In re Emergency Amendments to Rules of Procedure, 381 So. 2d 1370, 1375 ("[t]he change was to recognize the fact that some legal issues may have `great public importance' but may not be sufficiently known to the public to have great public interest'"); see also Justice Ben F. Overton,Appellate Rules Amended to Implement New Jurisdiction, Fla. Bar News, Apr. 15, 1980, at 5 (accord). It would seem incongruous that the Florida Supreme Court intended during this period to both expand its own jurisdiction to hear cases of statewide importance and also authorize the district courts of appeal to have the same jurisdiction. See Raoul G. Cantero III, Appellate Law: Certifying Questions to the Florida Supreme Court: What's So Important?, 76 Fla. Bar J. 40, 40 (2002)("It also seems self-evident that an issue of `great public importance' must mean importance throughout the state, not just in a single geographic area. . . . [I]ssues which arguably may be of `great public importance,' but nevertheless are limited in their reach to the jurisdiction of a particular appellate district, are more appropriate for en banc consideration by that district court than for certification to the Florida Supreme Court.").
In addition, permitting en banc review merely because the case raises an issue of exceptional importance necessarily results in a host of jurisprudential problems. For example, condoning en banc review on this basis effectively empowers the district court to sit as a minor supreme court, providing a losing party the opportunity to target the forum — the Florida Supreme Court, the District Court of Appeal sitting en banc, or both — it believes will be more sympathetic to its position. Equally important, so construing Rule 9.331(d) fundamentally disrespects the decision of the people of this state in 1956 to establish the two-tier system of the courts that took effect on July 1, 1957. See supra, p. 3.See also Stein v. Darby, 134 So. 2d 232, 236-37 (Fla. 1961)("Having the view that the District Court of Appeal was exercising jurisdiction vested in it, when it gauged the order entered in this particular case, we desist from discussing the views of the District Court of Appeal anent the related problems with which that court struggled. To do so would, in our opinion, amount to encroaching on its territory."), overruled in part by Snedeker v. Vernmar, Ltd., 151 So. 2d 439 (Fla. 1968); Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958)("It was never intended that the district courts of appeal should be intermediate courts. . . . The . . . Supreme Court . . . functions as a supervisory body in the judicial system for the State, exercising appellate power in certain specified areas essential to the settlement of issues of public importance and the preservation of uniformity of principle and practice, with review by the district courts in most instances being final and absolute."); Jackson, 926 So. 2d at 1265 (Fla. 2006)(accord). Therefore, however enticed a district court of appeal may feel to take on a matter of statewide significance under Florida Rule of Appellate Procedure 9.331, either based upon a fancy of its own or at the undisciplined urging of a litigant, Rule 9.331 does not permit it to do so, it is not necessary to do so, and, more importantly, our proper role as judges counsels that we refuse. See Kirchgessner v. Wilentz, 884 F. Supp. 901, 912 (D.N.J. 1995)("It seems that because of the separation of powers, the judiciary has to be self-policing in many respects.") (internal quotations omitted); Suja A. Thomas, Judicial Modesty and the Jury, 76 U. Colo. L. Rev. 767, 812 n. 209 (2005)("Such modesty by the judiciary may be appropriate when one considers that when the judiciary reviews its own power, no other branch may directly affect this interpretation.").
Worse yet, while litigants in a more restrictive jurisprudential regime might hesitate to file further appeals based on the increasing narrowness of review, see, e.g., Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995)("As a case such as this travels up the ladder, review should consistently become narrower, not broader."), litigants operating in the more forgiving regime proffered by Petitioners might consider themselves more disposed to gamble on continuous review "up the judicial ladder." The casualty in such a circumstance is, of course, finality.
Based on the above analysis, as well as an examination of the role of Rule 9.331, I conclude we should consider en banc review only if: (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. Applying this reasoning to this case, there is no basis to grant Petitioner's motion for rehearing en banc. While this case is no doubt of exceptional importance to the parties — almost all cases are — it is not a case of exceptional importance, legally speaking, in this court. Whether Respondents ultimately recover will not affect the ability of other potential litigants to seek their own remedies. Nor will our denial of Petitioner's petition today negatively influence the public's perception of the judiciary's ability to render meaningful justice.
Examples of cases that might fall within these parameters include: (1) an electoral tabulation dispute where the electoral boundaries are solely within the jurisdiction of a district court of appeal as distinguished from a dispute where the boundaries cross district lines; (2) an environmental dispute of local significance; and (3) a criminal proceeding where the accused is a recognizable figure in the local community and the panel's decision may create a reasonable belief by the public that the judiciary was not acting impartially.
Finally, there is no merit to Petitioner's alternate prayer that we certify this case as a Question of Great Public Importance under Article V, section 3(b)( 4) of the Florida Constitution. Although I adhere to the reasoning set forth in my dissent in this case, no other court has squarely addressed the issue raised. It is not our prerogative to pass the buck to the supreme court anytime we are faced with an issue of first impression or of particularly difficulty. There are times when the issue raised is better vetted in other courts of appeal before being considered by a higher court. In my view, this is one of those times. See Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 406 (1932)(Brandeis, J., dissenting)("[I]n most matters it is more important that the applicable rule of law be settled than that it be settled right.").
For these reasons, I join in the denial of Petitioner's Motion for Rehearing En Banc and/or Motion to Certify.