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A Vote Against Opinions From Evenly Divided Appellate Courts
Special to Law.com
February 25, 2008
Howard J. Bashman
Related: Bashman Archive
Opinions from appellate judges disagreeing over the outcome of a case may make for riveting reading, but there's one circumstance where such opinions are pointless: when the ruling under review is being affirmed by an evenly divided appellate court. Nevertheless, appellate courts take divergent approaches on the appropriate way to announce a decision that affirms a lower court's ruling by an equally divided court.Some courts, such as the U.S. Supreme Court or the 3rd U.S. Circuit Court of Appeals, simply issue a one-line order stating that the judgment under review is affirmed by an evenly divided court without supplying any opinions or identifying which way the judges on the court have voted. Other courts, such as the Supreme Court of Colorado, reveal the identities of the judges who have voted to affirm or reverse, while stopping short of issuing opinions in support of those positions. Finally, other courts, such as the federal appellate courts for the 1st Circuit and the 5th Circuit, issue reasoned opinions in support of affirmance or reversal even when evenly divided.
My column from last week criticized judges who concur in the result without opinion and suggested that those judges should instead either issue at least a short explanation of why they refrained from joining in the majority opinion or, failing that, should simply join in the majority's opinion and not just the outcome.
I have a different view, however, about the usefulness of an evenly divided appellate court's reasoned opinions for or against the affirmance of a lower court's ruling. As I see things, the far preferable approach is the one that the U.S. Supreme Court and the 3rd Circuit follow of not issuing opinions or revealing how the judges voted.
It strikes me as futile for an evenly divided court to write opinions for or against the affirmance of a lower court ruling. None of the opinions has any precedential value. And by investing time and effort in publicly recording their views, the appellate judges risk locking themselves in to a particular outcome on the question presented, thereby losing the flexibility to change their minds if the question resurfaces in the context of a different case.
Even the Supreme Court of Colorado's approach, whereby the judges' votes are announced when the court is equally divided but opinions in support of affirmance and reversal are not issued, carries the same risk of locking the judges in to a particular outcome on the question presented. It would be far preferable not to reveal how the individual judges had voted, so that the next time a given question arises in the context of another case, the judges will be able to evaluate the proper outcome based on the new case's particular facts and circumstances, while unfettered by the public's knowledge of how they had voted on the last case to present the identical question.
Moreover, it is possible that the evenly divided vote on the earlier case resulted from the recusal of one of the appellate court's members. If no judges recuse from deciding the next case to raise the same issue, the judge who did not participate in deciding the earlier case might be able to cause his or her colleagues to change their views concerning the proper outcome. Yet those colleagues might be less willing to reconsider their views if the court has already publicly revealed how they had voted on the outcome of the earlier case that presented the identical issue.
Lastly, it's rare to hear the complaint that appellate judges, or particular appellate courts, have too much free time. Why an otherwise overworked appellate court would nevertheless choose to engage in the pointless exercise of writing opinions for or against affirmance when the court is evenly divided is a mystery whose answer may never be definitively known.
Indeed, an appellate court's practice of issuing opinions in cases where the court is evenly divided can sometimes have lasting untoward consequences. For many years, the 3rd Circuit was reluctant to certify questions of Pennsylvania law to the Pennsylvania Supreme Court because, on an earlier occasion, such a certification resulted in a 3-3 ruling by Pennsylvania's highest court that took years to issue because the participating justices wrote lengthy opinions in support of their evenly divided views.
Instead of definitively resolving a question of Pennsylvania law, all that the 3rd Circuit obtained from Pennsylvania's highest court was years of delay. After that delay, the 3rd Circuit was back where it had started before the certification, needing to predict how Pennsylvania's highest court would rule if an odd number of justices were taking part in the decision.
CONCLUSION
As regular readers of my columns well know, I am a staunch supporter of reasoned decisions from appellate courts. I applauded the 3rd Circuit when it abandoned its use of judgment orders that provided no reasons for the outcome on appeal, in favor of issuing at least a short non-precedential memorandum opinion in every appeal. And I strongly supported the amendment of the Federal Rules of Appellate Procedure to allow all federal appellate court opinions to be cited, whether precedential or non-precedential.
Yet, as is now obvious, even my support of reasoned appellate court opinions has its limits. As I see it, when appellate courts are evenly divided over the outcome of the merits of an appeal, it is preferable that they merely announce that the ruling under review is affirmed by an evenly divided court without issuing opinions or revealing how the appellate judges voted.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
