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The Florida Supreme
Court "created" in 1998 the Florida Judicial Management Council to act
as the governing body of the Florida State court system for administrative
purposes (Judicial Administration Rule 2.125). Its 21 members are
appointed by the Chief Justice of the Florida Supreme Court and consists
mostly of judges and lawyers, with a token of four public members. In that
same year of 1998 the Chair of the Judicial Management Council appointed
the Committee on Per Curiam Affirmed Decisions (‘the PCA Committee),
consisting of five appellate judges one from each of the five appellate
districts and five attorneys four of which were employed by the state and
only one was in private practice. The extensive use of "Per Curiam
Affirmed" (PCA) decisions by the appellate courts was widely objected to
by the attorneys in private practice and the public. Obviously, the
Committee was appointed to officially approve of the use of the PCA’s,
because that is what happened.
In May 2000 the Committee
issued a Final Report and Recommendations. You can read the whole report
click
here.
The Committee purportedly sought personal participation of those
interested in the meetings and discussion of the Committee on the use of
"Per Curiam Affirmed" decisions (PCA). Obviously, that was directed only
to attorneys, because the "open panel discussion" was held in Miami during
a regularly scheduled meeting of the Florida Bar and the notice appeared
in the Florida Bar News, not generally read by the public.
This is certainly an issue
that effected the public when, first of all the Judicial Qualification
Commission rejects 99% of the complaints on the pretext that the
complainant’s remedy is by appeal, when about 2/3 of the lower court
judge’s dispositions are rubber stamped by the appellate courts with a
"Per Curiam Affirmed" decision. The Report notes that for the year of 1999
the appellate courts of the various districts in Florida disposed of
13,312 appeals of which 9203 were disposed with a "per curiam affirmed" or
almost seventy percent of the appeals.
What that PCA decision means
is that when a person who loses in the lower court appeals to the
appellate court, after all that briefing, work and expense that is put
into the appeal, the appellate decision merely says "Per Curiam Affirmed"
followed by the name of the three judges on the panel. Sometimes, it is
followed by a citation of authority, which in many instances has no
relevance to the case. Generally, a motion for Clarification or for
Rehearing addressed to the PCA decision is simply "denied" also without
explanation. So, what the law gives on the one hand, the right of appeal,
it is often taken away by the other hand. Another effect of this PCA
decision is that it bars a further appeal to the Florida State Supreme
Court. [Jenkins.v. State, 385 So.2d 1356 (Fla. 1980)] Although a person
may have a right to proceed with an appeal to the U.S. Supreme Court that
is equally fruitless in view of the fact that the Supreme Court justices
hear about 80 appeals a year out of the many thousands of petitions filed
annually.
The use of the PCA was
justified by the Committee to ease the workload on the judiciary because
of the increase in the volume of appeals. Interestingly, the Committee did
not consider the appointment of more judges to the appellate bench,
because that would make the appellate judiciary too diverse. Well, if you
look at the highest State Court and the highest U.S. court there are
always less than ten judges just a little above a half dozen, which makes
up only one panel. Obviously, intentionally these courts are kept a
closely knit group.
The support its position on
the use PCA’s the Committee did not rely on the public view, but examined
what other courts have done to ease the workload of their judges. The
Committee cited with approval from an 11th Circuit decision
holding that a primary benefit of the PCA’s was that the use of summary
orders permitted the judges to devote more time to the appeals which
"truly merit fully developed exercises of judicial craftsmanship". So,
that regardless of the statutory right to appeal, whose appeal the
appellate judges take into consideration has become discretionary. The 11th
Circuit relied on its own local rule permitting the use of the PCA’s, and
on more than twenty states and each of the federal circuits which use
summary disposition and on the practice in England where the appellate
courts decide their cases without written opinion.
The PCA Committee also
surveyed intermediate appellate courts in ten states other than Florida,
namely California, Georgia, Illinois, Michigan, New Jersey, New York,
Ohio, Pennsylvania, Virginia, and Texas. They noted that states with the
exception of Illinois and New York do not require that all appellate
opinions be published. The Committee came up with the finding that the
percentage of appellate opinions published ranges from 7 percent in
California to 28 percent in the Commonwealth Court in Pennsylvania and the
average was 10 percent. The PCA Committee further noted that two states
Pennsylvania and Texas admittedly allow law clerks to prepare opinion
drafts that New Jersey forbids it, and one-half of the states leave it to
the discretion of the judge (which is the rule in Florida as well but, it
is not admitted).
Although there was no public
input, many lawyers in private practice voiced their strenuous objections
to the PCA decisions. The PCA was denounced as a "deplorable miscarriage
of justice", especially where it can be used by the district courts to
prevent further review by the Florida Supreme Court. These objections
appear in Appendix I - 1 of the Report. To mention of few, they are as
follows:
"The net result is that PCA opinions undermine confidence in the
integrity of the judicial system. The point is not that the public
perceives PCA opinions as a way to hide injustice. The point is that
they are right in thinking so. The remedy is to change the practice,
not the perception.
Problems arise when the only law on the subject from one DCA is not
followed by a sister court when the identical issue is presented....
The court has an obligation to either follow the law or explain why
they may have reached a different conclusion. It is improper for a
court to hide behind a PCA to avoid following the law and avoid taking
a stand if it disagrees.
The courts should be required to give an explanation for their
affirmance. Florida’s appellate courts have long used PCAs to avoid
writing on important issues that have not been decided under Florida
law.
Overuse of the PCA practice masks laziness by appellate court
judges, uncritical judicial analysis, and questionable justice in the
administration of the court system...when litigants commit themselves
to the time and expense to take an appeal, win or lose, they expect
greater consideration by the appellate courts than a one sentence
decision or a citation to one or two cases that often appear
inapplicable or distinguishable. Usually the losing party in the
appeal feels cheated, not only by the loss but also by how the
appellate court treated the appeal in a dismissive, perfunctory way.
That undermines the justice system or at least the perception of the
justice system.
Nothing undermines public trust or professionalism more than the
inability of the attorney for the appellant to explain to his or her
client a PCA opinion.
PCAs contribute to a lack of respect for, and acceptance of,
appellate decisions. PCAs seem arbitrary and contain an element of
decisions made behind closed doors. Part of the effectiveness of any
court, including an appellate court, is the perception and reality of
fairness. A court should explain its decision even if the explanation
will not necessarily advance legal precedent.......The hollowness of
PCA decisions undermines the integrity of our judicial
system......Respect for the rule of law in general, and the appellate
courts of this state in particular, is diminished through the use of
PCAs........The use of PCAs in approximately 65 percent of DCA
decisions harms the public’s faith in the fairness of the legal system
that it helps to fund through payment of taxes.....There have been
many instances where the power of the DCAs to PCA decisions has been
abused with no avenue of redress available to the litigant who
receives the unfavorable PCA decision. In several instances, the PCA
decision was contrary to existing law. DCA judges should be required
to cite the appropriate authority when issuing a PCA."
The PCA Committee Chairman
noted that the PCA Committee solicited written input from judges, state
attorneys, public defenders, and members of the bar. The Chairman
concluded that most of the judges and state attorneys who responded saw no
significant problem with the present use of the PCA, and it was only the
public defenders and private bar members who wanted the district courts to
either curtail or eliminate the practice. The opposition to the PCA’s was
brushed off as a vocal minority, in total disregard that what the private
attorneys voiced was not only that they opposed the practice of PCA’s but
the public at large as well.
The Chairman reviewed the
votes of the Committee at one of its meetings and noted that there was
overwhelming support for the position not change the use of per curiam
affirmed decisions. However, half of the ten member Committee consisted of
appellate judges and the other half were hand picked attorneys four of
whom who were employed by the state. The Committee declined to recommend
to abolish the practice of the per curiam affirmed decisions without
opinion. The Committee merely agreed to recommend that a rule be adopted
which would allow an appellant or appellee to petition the appellate court
for a written opinion by showing that a written opinion would serve as a
basis for a Supreme Court review. But, whether to grant that petition was
to left within the discretion of the DCA. The Chairman, rejected the
private attorneys’ objections to the PCA practice saying as follows:
"The PCA Committee is of the opinion that Florida’s judiciary is
the finest in the nation. The PCA Committee further believes that
Florida judges, with few exceptions, conduct themselves in a
professional and ethical manner and in accord with their oath of
office. The suggestions that Florida’s appellate judges issue PCAs for
reasons other than the fact that there has been demonstrated no
harmful error in the trial court, or that panels are reluctant to
write for various inappropriate reasons are unfounded and rejected by
the PCA Committee. Moreover, the integrity of the appellate process
should not be maligned by unfounded and unsupported accusations that
amount to charges of judicial misfeasance, malfeasance, or
nonfeasance. Simply put, the understandable reality is that it is
difficult for many lawyers to accept the fact that their case does not
deserve a written opinion."
In an opinion filed on August
29, 2002 the Florida Supreme Court adopted the recommended amendment to
the Appellate Rules allowing a litigant to request as part of a motion for
rehearing, that a district court of appeal issue an opinion in a case
where that court has issued a decision without an opinion to serve as a
basis for Supreme Court review. Obviously, this is a mere request on a
motion for re-hearing where it has been the general practice of the
district courts to dispose a request for a motion for rehearing with a
simple "denied" without explanation. In fact the Florida Supreme
Court made a recent decision that the recently adopted Florida Rule of
Appellate Procedure 9.330(a) cannot be used to get the Supreme Court to
review a case where a district court of appeal has refused to issue an
opinion or explanation when it decided an appeal. To read further
click here.
It is prevalant in many state appellate
courts that non-precedential appellate court rulings remain all but
inaccessible to the general public, locked away in court filing cabinets
and unavailable over the Internet, on Lexis or on Westlaw. It is
estimated that about nine out of every 10 appellate-court rulings are
designated as memo decisions. It is urged that this practice of hiding
these decisions from public view be abolished to read further
click here.
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