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."
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?
Is this a trick question?
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?
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.
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.
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).