In 2019, Florida’s appellate courts issued 12,208 opinions. In the past, they have issued up to 26,800 cases with an average of 24,700 cases per year. Each district court of appeal has a certain number of judges, which means there are a lot of different three-judge panels possible. Since 1982, the appellate courts have only issued an average of 13 en banc opinions per year. This article explains why.
In 1941, the U.S. Supreme Court addressed whether federal circuit courts could have en banc panels. The court allowed it in order to avoid conflicts within the circuit courts. This process was incorporated into the Federal Rules of Appellate Procedure in 1979. The Florida Constitution created three-judge courts of appeal, but they can expand beyond three members. The Florida Supreme Court made a rule in 1979 that allows district courts of appeal to have en banc (full court) hearings for cases of exceptional importance. Any judge in the court can request a vote for an en banc hearing, and if the majority of judges vote in favor, a judge in the majority will write an opinion. Each district court of appeal has its own rules for en banc proceedings, and if the court grants en banc review, it can always change its mind and remove the case from en banc review. There are very few en banc opinions because judges have different views on when en banc review should happen. Florida’s appellate courts issue a lot of opinions called “per curiam affirmed” opinions, which don’t have much legal power. Some judges don’t think those cases need to be reviewed by all the judges. Before opinions are released to the public, all the judges in the district get to see them and can talk about any concerns they have with the author. This helps avoid conflicts. Some judges believe that having all the judges review a case together is against the law. Others think they shouldn’t do it just because they disagree with the decision. Some say it should only happen for very important cases that will affect many others. And some say it’s too much work for the court that is already very busy. Because of all these reasons, there are very few cases that get this special review. Florida’s appellate court system does not hold many en banc proceedings, where all the judges hear a case. Only a small percentage of cases get this kind of review, whether they are about crimes or civil matters. If you do want to ask for en banc review, make sure you have a good reason and cite other cases to back up your request. Otherwise, the court might not take your request seriously.
Source: https://www.floridabar.org/the-florida-bar-journal/en-banc-hearings-by-the-numbers/
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