Concurring Opinions Commanding A Majority Of The Court

When a concurring opinion commands a majority of the votes on a court, does its rule constitute a holding?

In Matarranz v. State, 133 So. 3d 473 (Fla. 2013), which is quickly becoming a seminal jury selection case in Florida, the Florida Supreme Court ruled 5-2 that a juror should have been stricken for cause based on her negative life experience with burglary, the crime at issue in the case. The Court held that there are two types of juror bias: (1) Those based on a misunderstanding of law, which of course can be rehabilitated; and (2) those based on life experience, which cannot be rehabilitated. Justice Lewis wrote the majority opinion and was joined by Justices Labarga, Quince, Pariente, and Perry.

Apart from the majority opinion, Justice Labarga filed a concurring opinion. In that opinion, he wrote that "Indeed, I would take the majority opinion one step further and hold that where a juror's expressed reservations about his or her ability to be fair and impartial arise from the juror's personal experience, true 'rehabilitation' of that juror is not possible." At 491. (It is unclear how this differs from the majority opinion. The majority stats that "When a juror expresses his or her unease and reservations based upon actual life experiences, as opposed to stating such attitudes in response to vague or academic questioning, it is not appropriate for the trial court to attempt to 'rehabilitate' a juror into rejection of those expressions--as happened here." That sounds identical to Justice Labarga's rule. But Justice Labarga obviously believed there was some difference in these rules. One explanation of the distinction is that the majority says rehabilitation by the trial court is impermissible, whereas the concurrence may also bar rehabilitation by the parties.)

Here's the rub: Justice Labarga's concurrence was joined by Justices Pariente, Perry, and remarkably enough, Perry--the author of the majority opinion. So which rule is the law?

The Florida Supreme Court has explained that "Under the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision." Santos v. State, 729 So. 2d 838, 840 (Fla. 1994). So any opinion that commands the votes of four Justices--including Justice Labarga's Matarranz concurrence--is a rule of law.

(Note, however, that Santos did not deal with a case where there was a single, clear majority opinion. It instead interpreted the rule from a case that contained a plurality opinion and a concurrence. So the outcome is potentially different in a case that purported to have a majority opinion and also contained a majority-concurrence.)

UPDATE: Here's a Florida case clarifying that a concurring opinion that garners the support of a majority of the court constitutes "law": Miami-Dade Cnty. v. Associated Aviation Underwriters, 983 So. 2d 618, 620 (Fla. 3d DCA 2008) ("Generally, a concurring or a special concurring opinion does not constitute law of the case. It is just one judge expressing his or her particular view of the case. But, where that special concurring opinion, or an issue in that special concurring opinion, is joined by a majority of the court , it does constitute law of the case as to that specific issue. See Greene v. Massey, 384 So.2d 24 (Fla.1980); Lendsay v. Cotton, 123 So.2d 745 (Fla. 3d DCA 1960).").