The Florida Supreme Court’s 2010 decision in Browning v. Florida Hometown Democracy, Inc. provides an ideal study of the efficacy of issuing non-precedential written opinions. Browning involved the Florida Legislature’s adoption of a petition-signature-revocation statute that was enacted against the backdrop of fraud allegations permeating Florida’s election process. Due to tight time constraints, the Florida Supreme Court summarily affirmed, without a written decision, the First District Court of Appeal’s holding. Eight months later, the court issued a thirty-four page, three-justice plurality decision, with one justice concurring in the result only and two justices dissenting.
In this Article, former Florida Solicitor General Scott D. Makar, who now serves on the First District Court of Appeal, explores the issues surrounding non-binding written judicial opinions in the context of Browning. The Article focus on how judges, particularly appellate judges, must form majority opinions, and whether non-binding published opinions represent a strategic use of limited judicial resources. The Author discusses the additional concerns raised by using concurring-in-result-only opinions, especially when such opinions create uncertainty in the law. The Article then surveys an alternative to issuing non-precedential written opinions through affirming lower court decisions without providing a written opinion, and the Article discusses the attendant consequences and scholarly criticisms of both approaches.