therArefuLLcourtpreSS : enBAncArguMentSinthedcA ’ S appellate Practice Section Chairs : BrandonBreslow – Kynes , Markman & Felman & DavidCostello – FLOfficeoftheAttorneyGeneral
theSeconddcA ’ sloneenbancargumentwasin1990 .
On January 29 , 2024 , the Fifth District Court of Appeal did something the Second District hasn ’ t done since 1990 : The court held an en banc oral argument . 1 Twelve judges took the bench . Chief Judge James A . Edwards welcomed everyone to “ the first annual , if not ever , en banc oral argument ” in the Fifth DCA ’ s history before introducing each judge . For the next hour and twenty minutes , the judges questioned counsel about whether the “ plain smell ” of “ fresh cut ” marijuana triggers reasonable suspicion for an investigatory stop now that marijuana has a lawful purpose in some circumstances .
Whatever the court decides , 2 the event raised my own questions about en banc arguments in the DCAs . So , I called each DCA ’ s clerk ’ s office to ask when they held their last en banc argument .
By far the most active court has been the First DCA , having held four en banc arguments since 2017 , 3 including one on Halloween 2023 . 4 The Third and Fourth DCAs haven ’ t hosted one in so long that the answers from their respective clerk ’ s offices were , “ we don ’ t know the exact date , but it ’ s been several years ,” and , “ not in recent memory .” Unsurprisingly , the Sixth DCA hasn ’ t held one in its fifteen-month history .
The Second DCA ’ s lone en banc argument was in 1990 . Former Judge Chris Altenbernd described the scene in an email to me : “ There were 12 of us and we were in a horseshoe at the front of the courtroom in Lakeland .” Seated on one end of the horseshoe as the junior judge , “[ t ] he lawyers would have been unable to make eye contact with me .”
“ At the end , we concluded that it was such a bad experience for the lawyers and the judges that we promised never to do it again . We used to remind every new judge that OA en banc was not a good idea .”
None of the participants from that argument remain on the court . Will the current judges stay the course charted in 1990 or break with tradition and follow the First and Fifth DCAs after the new courthouse opens ? Stay tuned . n
1
Baxter v . State , Case No . 5D23-0118 ; watch at : https :// www . youtube . com / watch ? v = oB78QAj13wo .
2
As of March 19 , 2024 , the court has not issued an en banc opinion in the case . The panel opinion is available at 2023 WL 7096645 ( Oct . 27 , 2023 ).
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