The Volokh Conspiracy - Odd Sort of Concurrence:

Check out the lineup in a Tenth Circuit erogenous zoning case, Abilene Retail #30, Inc. v. Bd. of Comm'rs, decided in July by a panel consisting of Judges Lucero, McWilliams, and Ebel: Judge Lucero delivers the majority opinion, which I take it is joined by at least one judge. Then Judge Ebel files a concurrence, which is joined by both of the other judges.

Now it would be odd but understandable if the concurrence concurred in the majority in its entirety. But the concurrence, while it joins in the result, only joins "most of [the majority's] reasoning"; and Judge Ebel states, "Although the majority in this case decides that the County has failed to meet its initial burden under Alameda Books, I disagree." Yet Judge Lucero, who wrote the majority, and Judge McWilliams, who must have joined it in order to make it a majority, join Judge Ebel's opinion disagreeing with the majority. (Note also that Judge Gorsuch's dissent from denial of rehearing en banc says that "All the panel members joined the concurrence," so the list of joining judges doesn't seem to be a simple clerical error.) What's up?

UPDATE: Sorry, should have included this passage from the majority: "We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding."

But my point is that Judge Ebel's concurrence says he disagrees with the majority; in addition to the sentence I quoted, the concurrence also argues that the majority's "rural/urban distinction is [not] sufficient at the initial stage of our analysis" (though the majority thought it was), that "the County has presented sufficient evidence ... to meet its minimal initial burden under Alameda Books" (contrary to what "the majority instead concludes"), and that even if the majority were right on this, "the result would not be to remand this claim for a trial, as the majority does" but instead just invalidate the ordinance. How can the majority join such a concurrence on any basis?

But on reflection perhaps I'm just being too picky: Maybe one should just read the opening line of the concurrence as "Ebel, J., concurring, and joined by McWilliams, J., and Lucero, J., except as to those portions that express disagreement with the majority."

	[Eugene Volokh, December 14, 2007 at 12:23pm] Trackbacks Odd Sort of Concurrence: Check out the lineup in a Tenth Circuit erogenous zoning case, Abilene Retail #30, Inc. v. Bd. of Comm'rs, decided in July by a panel consisting of Judges Lucero, McWilliams, and Ebel: Judge Lucero delivers the majority opinion, which I take it is joined by at least one judge. Then Judge Ebel files a concurrence, which is joined by both of the other judges. Now it would be odd but understandable if the concurrence concurred in the majority in its entirety. But the concurrence, while it joins in the result, only joins "most of [the majority's] reasoning"; and Judge Ebel states, "Although the majority in this case decides that the County has failed to meet its initial burden under Alameda Books, I disagree." Yet Judge Lucero, who wrote the majority, and Judge McWilliams, who must have joined it in order to make it a majority, join Judge Ebel's opinion disagreeing with the majority. (Note also that Judge Gorsuch's dissent from denial of rehearing en banc says that "All the panel members joined the concurrence," so the list of joining judges doesn't seem to be a simple clerical error.) What's up? UPDATE: Sorry, should have included this passage from the majority: "We agree the ordinance is facially content neutral, but conclude a genuine dispute of material fact exists as to whether the Board reasonably relied on studies analyzing the secondary effects of adult businesses on surrounding communities in passing the ordinance. If the Board's reasonable reliance were not in dispute, we agree that Abilene has cast sufficient doubt on the Board's rationale to preclude summary judgment. On that basis, we join in the concurrence of Judge Ebel as an alternative ground for our holding." But my point is that Judge Ebel's concurrence says he disagrees with the majority; in addition to the sentence I quoted, the concurrence also argues that the majority's "rural/urban distinction is [not] sufficient at the initial stage of our analysis" (though the majority thought it was), that "the County has presented sufficient evidence ... to meet its minimal initial burden under Alameda Books" (contrary to what "the majority instead concludes"), and that even if the majority were right on this, "the result would not be to remand this claim for a trial, as the majority does" but instead just invalidate the ordinance. How can the majority join such a concurrence on any basis? But on reflection perhaps I'm just being too picky: Maybe one should just read the opening line of the concurrence as "Ebel, J., concurring, and joined by McWilliams, J., and Lucero, J., except as to those portions that express disagreement with the majority."