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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."

AF:
From the majority opinion:

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.
12.14.2007 12:35pm
CEB:

Now it would be odd but understandable if the concurrence concurred in the majority in its entirety.

But can a bee be said to be or not to be an entire bee, when half the bee is not a bee due to some ancient injury?
12.14.2007 12:35pm
bobolinq (mail):
Why is this mysterious? The panel opinion says, on page 1, "we join in the concurrence of Judge Ebel as an alternative ground for our holding." So obviously two judges thought that their resolution was best, but Ebel disagreed. The two judges agreed with Ebel but only as a second-best alternative, and they found it important to indicate that they felt that their proposed resolution was the best.

Is this a trick question?
12.14.2007 12:37pm
Sasha Volokh (mail) (www):
It remains fishy to the extent that the concurrence itself says it disagrees with the majority.

If Lucero and McWilliams had joined the whole thing except the sentence that said "I disagree" (or any part that indicated agreement with only "most of the majority's reasoning") that would be one thing -- two judges agreed with reasoning A, and three judges agreed with alternative reasoning B.

But now -- for future Tenth Circuit panels' guidance -- what's the legal status of these two holdings?

Of course, probably future panels would pretend that Lucero and McWilliams had joined the whole concurrence except the sentence that said "I disagree" and any part that limited its agreement to only "most" of the holding. But still, shouldn't they have been more careful?
12.14.2007 12:51pm
kietharch (mail):
"erogenous zoning"? that's very good. Your term, not the court's, right?
12.14.2007 1:23pm
tvk:
It has happened before. See Susser v. Carvel Corp., 332 F.2d 505 (2d Cir. 1964).
12.14.2007 1:44pm
Eugene Volokh (www):
kietharch: I don't know who pioneered the term "erogenous zoning," though I know it wasn't me.
12.14.2007 1:48pm
Timothy Sandefur (mail) (www):
This makes me think of two somewhat unusual cases. In the Wayne County v. Hathcock case a few years ago (which ended with the overruling of Poletown) the Michigan Court of Appeals held that under Poletown the taking was constitutional, but then the panel signed on to a concurrence calling for the overruling of Poletown. This, of course, is the proper and appropriate way for appellate courts to deal with precedent they don't like (as opposed to just ignoring the precedent, or "following their consciences," or finding hypertechnical distinctions... Ninth Circuit, I'm looking at you...)

The second is the case of Philip Morris v. Reilly, a First Circuit decision I was reading recently. There, the panel initially issued a reversal, but the en banc court reheard the case. Evidently the en banc court then reversed the panel, affirmed the district court, and had Judge Torulla write the en banc opinion. What's odd is that Torulla's opinion is written in the first person ("I hold that...") and there is a concurring opinion which takes issue with these holdings. As a result, when you look at it, it appears for all the world like Torulla's writing for himself--and yet the case is an en banc decision. Weird and confusing.
12.14.2007 1:56pm
lawstudent:
It seems to me the case can be looked at this way:

Opinion by Lucero and McWilliams:
I) Reasoning A.
II) Alternatively, Reasoning B.
III) Summary Judgment Reversed.

Opinion by Ebel Concurring in Part II (Reasoning B), dissenting as to Part I (Reasoning A):
I) Reasoning A is incorrect.
II) Reasoning B is correct.
II) Summary Judgment Reversed.

Why does it matter that the alternative holding (Reasoning B) was elaborated in Judge Ebel's opinion rather than Judge Lucero's opinion?

Paying particular attention to the framework under which the case was decided, it seems to me that Reasoning A controls because the you must answer Reasoning A before getting to Reasoning B under this burden-shifting framework.
12.14.2007 3:20pm
lawstudent:
I should clarify that I understand, in my example, that Reasoning B is not actually contained within Judge Lucero's opinion. I organized the holding in the way I did merely to clarify what I see to be going on.
12.14.2007 3:22pm
AF:
Of course, probably future panels would pretend that Lucero and McWilliams had joined the whole concurrence except the sentence that said "I disagree" and any part that limited its agreement to only "most" of the holding. But still, shouldn't they have been more careful?

Yes, but it's no big deal. If the Supreme Court had done this, however, it would have created a several cottage industries. Cf. Branzburg v. Hayes (Powell, concurring).
12.14.2007 6:11pm