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It’s a simple, three-word phrase — per curiam affirmed. But those words on appellate decisions often frustrate Florida lawyers who’ve worked hard on their briefs and want a full explanation for the court’s ruling. Even more important, a per curiam affirmance of a lower court’s ruling makes it impossible to seek further review from the Florida Supreme Court. With three words, the case is dead in the water. Soon, however, those unhappy lawyers will have at least some recourse. Under a rule approved by the Florida Supreme Court that takes effect in January, they will be able to ask the appellate court to write a full opinion for a per curiam affirmed decision, also known as a PCA. But the rule requires attorneys to show that a written opinion could provide a legitimate basis for supreme court review and to state specific reasons why — a relatively high hurdle. Some observers, particularly criminal defense lawyers, say the new rule doesn’t go far enough. PCAs, opinions signed “by the court” in which the district courts of appeal uphold lower court rulings without explanation, are generally issued in cases in which the judges consider case law so well-established that writing an opinion is unnecessary. The purpose is to curtail redundancy and limit the number of appellate decisions that attorneys have to slog through while researching their arguments. But their usage has doubled in Florida in the last two decades. From July 1998 to June 1999, nearly two-thirds of all appeals filed statewide were decided by PCA. Court officials say PCAs are necessary because appellate filings have increased more than 50 percent since 1983. Judges are swamped, they say. Attorneys and litigants have expressed increasing dissatisfaction with the PCAs. These opinions, they complain, leave them wondering how the appellate court reached its decision. In addition, they are left with the impression that their arguments were given only cursory review. “There is no question that the current state of affairs engenders inconsistent dispositions, bad feelings and frustration by lawyers and litigants, and undermines the public trust and confidence in the courts,” Nancy Daniels, a Leon County, Fla., public defender, wrote in a report issued by a committee formed to study the issue. But 4th DCA Judge Mark Polen assured lawyers that appellate courts review all cases fully, regardless of whether the ultimate disposition is a PCA. “There’s no difference in the analysis,” Polen said. “The only thing the court is saying is there’s nothing earth-shattering about the issue.” Rodolfo Sorondo Jr., a former 3rd DCA judge, said he sympathizes with appellate lawyers’ concerns, but said PCAs are necessary. “I understand there is some measure of frustration for attorneys because they do a lot of work and want to see the court’s thought process,” said Sorondo, who recently stepped down to head the appellate division at Holland & Knight in Miami. “But you have to understand that the district courts receive more than 3,000 cases a year. Time has to be reserved for matters that really need to be explored.” Judge Polen agrees, saying it would be nice to provide full opinions for every case but that it isn’t practical. “Part of the thinking is that there are already too many written opinions out there,” he said. “It’s mind-boggling.” Nevertheless, the supreme court in August approved a new Rule of Appellate Procedure allowing attorneys to ask for a full opinion. Appellate attorneys predict that such motions rarely will be granted. Still, they say, they appreciate having an additional avenue for getting their cases reheard. “Lightning does strike,” said Steven Brannock, an appellate lawyer at Holland & Knight in Tampa. “When the court issues a PCA, they’ve already said it’s a case not worthy of an opinion. But you will see a few cases a year when the rule gets used and the court agrees.” NATIONAL DEBATE The debate over PCAs mirrors an ongoing national debate about the use of unpublished opinions. More than 30 states and the federal circuit courts long have used some method of selective publication of rulings to cut down on voluminous case law. The practice allows courts to issue written rulings to settle disputes between parties. But these “unpublished” opinions do not go into the case law books and can’t be cited as precedent. In California, where judges issue far fewer PCAs than courts in Florida, only 7 percent of all state appellate opinions are published. On the federal appellate side, a federal rules advisory committee recently approved a proposal to allow the citation of unpublished decisions in their briefs. But the proposal, still awaiting final approval, would permit attorneys to cite these opinions solely for their persuasive value, not as precedent. In Florida, however, the committee formed to examine the use of PCAs refrained from taking a position on the issue of unpublished opinions. Whether Florida district courts should switch from using PCAs to issuing full but unpublished opinions was beyond the scope of their review, committee members said. LIGHTENING THE LOAD One reason Florida appellate lawyers are concerned about PCAs is a 1980 constitutional amendment that blocks the supreme court from reviewing cases decided by PCA. The amendment limited supreme court review to cases in which an appellate decision “expressly and directly” conflicted with rulings by other DCAs. That amendment restored the DCAs to their original purpose when they were established in 1957 — to lighten the load of the Florida Supreme Court and serve as the final forum for most appeals. The role of the supreme court was restricted to ensuring that district courts were applying case precedent uniformly throughout the state. Previously, the high court had the ability to examine the underlying record in PCA decisions to determine whether there was a basis for review. But faced with an overwhelming caseload, a number of supreme court justices felt they could no longer handle this burden. “We were buried in cases up there,” said Arthur England, a former chief justice who now heads the appellate division at Greenberg Traurig in Miami. “Everyone is entitled to one appeal, but no one is entitled to two.” England, who led the push for the amendment, said the provision restricting review of PCAs “has been a sore in the side of attorneys for a long time.” The new supreme court rule allowing requests for full opinions is based on a recommendation from the Committee on Per Curiam Affirmed Decisions, a 10-member panel of judges and attorneys created in April 1998. The committee, appointed by the state Judicial Management Council, was directed to evaluate the use of PCAs to determine possible abuse. In its review, the committee gathered data from all five of Florida’s DCAs to determine what percentage of cases were disposed of by PCA and why they were on the rise. From July 1998 to June 1999, the committee found that 62.5 percent of all appeals filed statewide were decided by a PCA. For criminal cases the rate was 69.2 percent, for administrative appeals 65.7 percent and for civil appeals 45.7 percent. Among the five districts, the percentage of cases disposed of by PCA ranged from 73.2 percent in the 2nd DCA to 55.8 percent in the 4th DCA to 51.9 percent in the 3rd DCA. PCAS’ USE Some per curiam affirmances were issued for fully briefed criminal and civil cases, the PCA committee found. But most PCAs came in response to motions for post-conviction relief and Anders briefs, which are filed by county public defenders when they have determined there is no basis for their client’s appeal. The attorneys file these briefs to preserve defendants’ right to file their own appeals pro se. Based on its findings, the committee determined that the present use of PCAs was appropriate. Moreover, the panel concluded that the use of PCAs was necessary to manage a burgeoning caseload. In the last two decades, the number of appellate filings has increased 57 percent, from 4,252 in 1983 to 8,193 in 1998. The committee rejected recommendations to force district courts to write opinions in every case or establish a rule governing when PCAs can be issued, similar to requirements in California, Illinois and New Jersey. The committee also found no evidence that the courts were issuing non-opinion affirmances arbitrarily or using them to avoid difficult legal calls. “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,” the committee said in its 200-page report, which was released in May 2000. But critics of PCAs say the new supreme court rule does not address some serious problems — particularly the variation in rulings both within and between Florida’s district courts. Take the case of Dennis and Gayle Raulerson, a couple convicted of drug offenses in St. Lucie County. Before trial, their motions to suppress evidence recovered from their home on the basis of illegal search and seizure were denied. In March 1998, the 4th DCA affirmed Dennis Raulerson’s conviction. But a few months later, a different three-judge panel of the 4th DCA reversed his wife’s conviction, based on the identical issue Dennis had raised in his appeal. The second panel found that police did not have probable cause to issue a search warrant simply because garbage outside the defendants’ home tested positive for marijuana. In January 1999, the 4th DCA reheard Dennis Raulerson’s appeal en banc and overturned his conviction. Raulerson’s case and others illustrate that rulings can be as varied as the judges who issue them, some attorneys say. The problem with PCAs is that they conceal these conflicting results, contend members of the Florida Association of Criminal Defense Lawyers. With nothing written, a court’s rationale can’t be compared with decisions in other cases, the association says. And such cases can’t be brought before the supreme court to determine whether an inter-district conflict exists. That’s why Daniels, who served on the special committee, dissented from the majority report. “The ultimate conclusions of the majority report do little of significance to address the PCA issue,” wrote Daniels, who advocated establishing a law restricting the use of PCAs and implementing a system of unpublished opinions to replace them. CLIENT RELATIONSHIPS Besides concerns about concealed conflicts, appellate attorneys also worry about how PCAs affect their relationships with clients. Many lawyers, particularly public defenders, complain that PCAs make it difficult to explain to their clients why they lost. Judges are sympathetic to this problem. But PCAs are necessary for weeding out frivolous appeals, many of which are handwritten letters from defendants sitting in jail, Sorondo said. “In criminal cases, everybody appeals if convicted, but in a civil cases, you gotta pay for your lawyers,” he said. “Consequently there are far more frivolous appeals filed in criminal matters than civil.” During his five years on the 3rd DCA, Sorondo said, he never saw judges use PCAs to duck tough issues. His advice to unhappy lawyers stumped by an adverse, one-word decision is this: Read your opponent’s brief.

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