Is there institutional disharmony in the Fourth Circuit? That’s the question that one judge suggested, in a concurring opinion, that lawyers and judges might be asking after an en banc opinion released on Tuesday.  In response, the judge whose dissenting opinion prompted the question submitted that the apparent tension we are witnessing within the Court is simply a “vigorous exchange of views over basic and fundamental principles of law,” and that such a “robust” exchange enhances “mutual respect and collegiality.”

In Manning v. Caldwell, the en banc Fourth Circuit decided 8-7 to invalidate a Virginia statute dealing with habitual public intoxication as unconstitutionally  vague and a violation of the Eight Amendment. (See here for a summary of the underlying legal dispute.)  The Court’s en banc review of the panel decision that had upheld the statute resulted in a slew of opinions—a majority opinion, a concurrence (which was really about the primary dissent), and three dissents (two by the same judge). One of the three dissents was from the concurrence, while another was from the primary dissent that the dissenting judge had joined in substance. Did you follow all that? See below for more.

The opinions were full of fascinating, unique, and thought-provoking topics and disagreements—and that’s without even getting into the actual substance of the issues before the Court. Among the things that stood out to me were:

The Majority Opinion. The majority opinion was written by two judges, apparently collaboratively, and joined by six other judges. I personally have never seen that before. I admit that I’ve never really been on the lookout for it, so perhaps it is more common than I believe. If you are aware of other co-authored opinions, point us to them in the comments!

The Marks Rule. The majority opinion relies heavily for part of its holding on application of the Marks rule. It states that “when a fragmented [Supreme] Court decides a case and no single rationale explaining the result enjoys the assent of five justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977). The majority invoked the Marks rule in relying on a pertinent Supreme Court case, Powell v. Texas, 392 U.S. 514 (1968), in which the justices split 4-1-4. Under the majority’s application of the Marks rule, Justice White’s single concurring opinion in Powell guided the Fourth Circuit’s decision in Manning. In taking this approach, the majority explicitly overruled the Fourth Circuit’s prior per curiam affirmance of a district court opinion in Fisher v. Coleman, 486 F. Supp. 311 (W.D. Va 1979), aff’d 639 F.2d 191 (4th Cir. 1981)(per curiam). In Fisher the Court had adopted the reasoning of the plurality opinion in Powell, incorrectly in the majority’s view, and gave no deference to Justice White’s “controlling” concurrence.

The primary dissent disagreed with the majority’s interpretation of Justice White’s concurrence and the manner in which the majority applied that precedent to this case. In the dissent’s view, it was the four justice plurality opinion that should have guided the analysis, not what it termed as “dicta of a single justice.” The dissent noted that “there may well be difficult cases concerning how best to apply Marks, but this is not one of them.” The stark contrast between the application of Marks by the majority and the dissent highlights the potential difficulties that the Marks rule presents for lower courts seeking guidance from a Supreme Court decision in which there is no majority opinion.

Waiver/Abandonment. The case presented an interesting waiver/abandonment issue. In the district court, the plaintiffs made a vagueness argument about the Virginia law at issue that the district court rejected. Before the original three-judge panel at the Fourth Circuit, the plaintiffs expressly declined to press the vagueness argument. Plaintiffs sought to revive the vagueness challenge before the en banc Fourth Circuit. In the face of a waiver argument from the Commonwealth of Virginia, the majority held that because the claim had been properly raised before the district court, the en banc Fourth Circuit retained the discretion to review the issue (which it deemed to have been “abandoned” or “forfeited” as opposed to “waived”). The majority elected to exercise this discretion, noting that while ordinarily issues that are not raised for review cannot be revived, an appellate court has the power to consider these issues when the record provides an adequate basis for consideration and neither party is prejudiced by consideration of the issue. The majority indicated that the exercise of its discretion is appropriate where necessary to reach the correct result on a matter of public importance. The primary dissent disagreed with the majority’s decision to reach the issue of waiver/forfeiture. It argued that the plaintiffs had expressly waived the vagueness argument and that by reviewing that claim now, the Court was establishing precedent that would be used endlessly by future litigants to “excuse inexcusable carelessness, or worse, calculated litigation strategy that in hindsight proved unsuccessful.”

From an appellate practice standpoint, it is significant that the United States Supreme Court has distinguished between forfeiture (the failure to timely assert a right) and waiver (the intentional relinquishment of known rights). United States v. Olano, 507 U.S. 725, 732–33 (1993).  Also, unlike in our state appellate courts, it should be noted error preservation in the Fourth Circuit is an issue of civil practice and procedure–not appellate practice and procedure. There is no corresponding N.C. R. App. P. 10 in the federal courts.  (Thanks, as always, to the inimitable Beth Scherer for highlighting this.)

More Waiver/Abandonment and the Dissent from the Dissent. The disagreement between the majority and the dissent on the issue of waiver spawned an additional dissenting opinion. Judge Diaz joined the primary dissent on its substance, but then penned his own dissent dissenting from the dissent on the issue of waiver. Judge Diaz noted that when a party expressly waives an argument before a panel of the Court, the en banc Court typically, in its discretion, declines to consider it. However, he agreed with the majority that when the argument abandoned “implicates an issue of great importance,” and the record enables the en banc Court to review the issue without prejudice to either party, review is appropriate. In Judge Diaz’s opinion, this case presented those circumstances and, although he did not agree with the majority’s analysis of the vagueness issue, he believed it was appropriate to review the issue.

The Concurrence (about the Primary Dissent). Judge Keenan, one of the two authors of the majority opinion, wrote a separate concurring opinion (joined by two other judges) that took aim at the rhetoric used by Judge Wilkinson in his primary dissenting opinion. The concurrence took issue with specific language used in the dissenting opinion, targeting the dissent’s characterization of the majority opinion as “as assault upon the constitutional, democratic, and common law foundations of American civil and criminal law” as contributing to an “alarmist tone.” The concurrence concluded with an appeal that the judges “turn away from the use of inflammatory language, which diminishes the value of our work.”

The Primary Dissent. Judge Wilkinson’s primary dissent was nothing if not vigorous. It was joined by six other judges. In addition to the points criticized by Judge Keenan’s concurrence, it pointed out what the dissenting judges believed was the slippery slope that the majority created by its holding that nonvolitional conduct (i.e., involuntary addiction) cannot be criminalized because doing so runs afoul of the Eighth Amendment’s prohibition against cruel and unusual punishment. The dissent stated that “it is hard to imagine a decision so infused with ruinous consequences or so insensitive to a judge’s inability to rework society from the bench.” And it suggested that the issue would make its way to the United States Supreme Court: “One day the last dolorous rays of sun will set upon the majority’s approach. Sooner, rather than later, I hope. But in all events, eventually, at the United States Supreme Court.”

The Dissent about the Concurrence (about the Primary Dissent). Judge Wilkinson’s second dissent was a response to Judge Keenan’s concurrence about his primary dissent. In this second dissent, Judge Wilkinson rejected the accusation that his primary dissent accused the judges in the majority of malfeasance. He doubled down on the assertion in the primary dissent that the majority opinion was “an assault upon the constitutional, democratic, and common law foundations of American civil and criminal law,” implying that what the concurrence viewed as an “alarmist tone” was simply the stating of fact. He went on to explain that in his view, the purpose of a dissenting opinion “is to illuminate difference, not to evidence disrespect,” and that “mutual respect and collegiality are enhanced, not compromised, by a vigorous exchange of views over basic and fundamental principles of law.” He suggested that the “civility” advocated by the concurrence “may also be used as a censoring mechanism to drain and dilute dissenting voices.” For his part, Judge Wilkinson revealed his belief that “flaws are not always best laid bare by pallid speech. Animation defines the First Amendment I was taught to revere.” (This passage reminded me of the slogan oft-used by the ACLU: Dissent is Patriotic.) This dissent concluded with Judge Wilkinson lauding his colleagues in the majority as “capable and dedicated jurists” that he was blessed to have as colleagues and friends, but acknowledging that there was “in this case a deep and honest difference of opinion the importance of which can neither be brushed off nor wished away.”

The Makeup of the En Banc Court. In light of the 8-7 split of this case, the timing of the proceedings and how that affected the makeup of judges who formed the en banc Court for this case might be of some interest.   Senior Judge Allyson Duncan participated and joined the dissent.  Fourth Circuit Local Rule 35(c) establishes that the en banc Court will consist of all eligible, active, and participating judges of the Court, but senior judges can only participate (or continue to participate) in en banc review in certain limited circumstances: if they were on the original panel or if they were in regular active service when the case was initially heard or reheard by the en banc court.  Senior Judge Duncan was not on the original panel, but was still an active judge when the case was heard on January 30, 2019.  Judge Allison Rushing, who filled Judge Duncan’s active seat, did not participate in the en banc review.  On that point, L.R. 35(c) states that “a judge who joins the Court after argument of a case to an en banc Court will not be eligible to participate in the decision of the case.”  Judge Rushing was confirmed on March 5, 2019.  Since Senior Judge Duncan joined the dissent, it would not have made a difference to the outcome if it had been Judge Rushing on the en banc Court instead of Judge Duncan (Judge Rushing either would have also dissented, and it would have still been 8-7, or she would have voted to affirm, and it would have been 9-6).  But this highlights how the timing of the change of a seat on the Court could have a monumental impact on the outcome a particular case.  Consider this: could there have been a situation where the timing was such that BOTH Senior Judge Duncan and Judge Rushing were part of a 16 judge en banc Court, and then that Court split 8-8?

A Proliferation of En Banc Cases in the Fourth Circuit. Finally, it is noteworthy that there have now been four (4) cases that the en banc Fourth Circuit has heard or will hear this year (two are set for argument in September).  In the seven year span from 2004-2010, the Fourth Circuit issued a total of ten (10) en banc opinons.  In the following eight and a half years 2011-present, the Court has taken twenty-three (23) cases for review by the full Court.  This phenomenon is perhaps worthy of its own blog post.

In sum, while the opinions in Manning span 83 pages in total, they are well worth the read.  This may not be the last we see of this case, as it could very well end up before the nine Justices seated in Washington, DC.  If that comes to fruition, it will be interesting to see whether the Supreme Court issues more opinions on the case than the five that came from the en banc Fourth Circuit.  Stay tuned.

–Patrick Kane