One of the crazier things I do every year is read the full text of every opinion from the Rhode Island Supreme Court and the United States Supreme Court. It can take a while to get through them, particularly when the U.S. Supreme Court likes to publish small novellas and it seems that every judge likes to concur or write separately.
(As an aside, the idea to read every U.S. Supreme Court opinion came from the Honorable Jeffrey Sutton of the Sixth Circuit Court of Appeals, who visited my law school and recommended it as a good way to keep up with federal law given the relatively low number of opinions and wide topic areas. Whatever one thinks of Judge Sutton’s judicial philosophy, his ideas burn with enough intellectual firepower that you could probably pour some batter on one of his written opinions and make a pretty good pancake).
In reading through all the Rhode Island and U.S. Supreme Court opinions this past year, I came across something I’d never seen before — in State v. Munir, Justice Robinson wrote the majority opinion in the case, and he also joined a concurring opinion in the same case! Not only did Justice Robinson write the majority opinion, but he decided to concur by joining Justice Flaherty’s concurring opinion, which lauded the “eloquent and well-reasoned [majority] opinion” but went on to question the practice of interrogating suspects in police custody without videotaping the interrogation.
Judges on panels (typically appellate panels) who participate in written decisions can indicate their approval or disapproval of the outcome in several ways. The most common types of opinions are the majority, concurrence, and dissent. The majority is the opinion of the court, usually written by one judge, which is joined by a majority of judges on the panel and is the opinion that controls in future cases. The dissent is just the opposite — it is an opinion that disagrees with the outcome and reasoning in the case, but it only commands a minority of judges on the panel, and therefore is not binding precedent in future cases. The dissenting opinion is usually the most prominent opinion in a case after the majority opinion. “I respectfully dissent” sounds a lot catchier than “I respectfully concur.” Sometimes the dissent will only “dissent in part,” meaning that the minority of judges who join the dissent disagree with one part of the case, but agree with the majority opinion on the rest of the case.
Then there is the concurring opinion, which can mean many different things, including: (1) the judge who writes it agrees with the majority opinion, but wants to clarify something or make additional arguments that the rest of the majority do not want to put in the majority opinion, (2) the judge agrees with the majority’s result in the case, but wants to limit or narrow the decision in some way, or (3) the judge agrees that the majority’s decision is correct under existing precedent, and doesn’t see the need to overturn the precedent at the moment, but signals an interest in revisiting the issue in a future case. Sometimes a judge will concur in part and dissent in part, meaning the judge agrees with one part of the outcome of a case, but disagrees with another. Usually a judge who writes a concurring opinion will also sign on to the majority opinion, unless the judge who decides to concur writes an opinion “concurring in the judgment,” which means the judge agrees with the outcome but not the majority’s reasoning.
Normally there is a majority opinion in every case that commands a majority of the judges on the panel, but not always. Sometimes a majority of judges cannot agree, such as when a nine-judge panel is split 4-4-1 into different opinions. In these cases, one of the judges will “announce the judgment of the court,” and then deliver “an opinion,” which is usually not described as a majority opinion. The tie goes to the lower court. So, for example, if one Rhode Island Supreme Court justice recuses from an appeal, and the remaining justices split 2-2, the lower court decision is affirmed and that will be the “judgment” of the Rhode Island Supreme Court. There are also “per curiam” opinions, which usually means the case can be decided quickly without the benefit of oral argument. Unlike other types of opinions, per curiam opinions act like a majority opinion, but are not signed by an individual judge as the writer of the opinion. There are sometimes dissents from per curiam opinions, which are signed by individual judges, and a judge can also concur. And none of this is to be confused with a “slip opinion,” which simply means it is the unofficial version of the opinion that ostensibly controls until the opinions in the case are formally published by the Court in the official reporter. Historically, the U.S. Supreme Court would sometimes make significant changes to the text of their opinions without notice between the publishing of the slip opinion and the official published opinion. Not cool.
There is an obscure type of judicial opinion called “dubitante” or “in dubitante,” which I’ve only seen a few times. Apparently “the term ‘dubitante’ is used to signify that a judge doubted the decision rendered,” but the judge still goes along with the outcome of the majority decision. See United States v. Root, 585 F.3d 145, 160 n.9 (3d Cir. 2009). As another court has explained, a dubitante opinion means “the judge is unhappy about some aspect of the decision rendered, but cannot quite bring himself to record an open dissent.” Am. Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335, 1345 n.1 (Ct. Int’l Trade 2019). It has also been issued when “a judge considers himself or herself to be constrained or bound by precedent, but wishes to suggest an alternative view.” Id.
Getting back to Justice Robinson’s decision to write a majority opinion and also join a concurrence in State v. Munir — I thought it had never been done before, but I was wrong! As luck would have it, when drafting a motion recently for a client I came across an earlier case, Bailey v. Algonquin Gas, in which Justice Flanders (retired) did the same thing, except he took it a step further and wrote the majority opinion and wrote the concurring opinion! I don’t think it would be appropriate to ask Justice Robinson to explain his thinking of why he wrote a majority opinion and joined a concurring opinion, as he is currently sitting on the Court, but Justice Flanders retired from the bench and is currently my law partner, so I had the opportunity to ask him. He explained that he could not get the other justices to sign on to the additional reasoning that he wanted to include in the majority opinion, so he penned a separate concurrence.
I searched for the use of “dubitante” opinions in Rhode Island, and it turns out the phrase has popped up only three times, and the only judges who have used the term to dissent or signify doubt are none other than Justices Robinson and Flanders. Cranston Police Retirees Action Comm. v. City of Cranston, 208 A.3d 557, 592 (R.I. 2019) (Robinson, J., concurring “in a decidedly dubitante frame of mind”); Luis v. Gaugler, 185 A.3d 497, 507 (R.I. 2018) (Robinson, J., dissenting in “a dubitante frame of mind”); State v. Souza, 708 A.2d 899, 901 (R.I. 1998) (Flanders, J., writing a majority opinion where he assumes something “dubitante”).
Now that Justice Robinson has written a majority opinion and joined a concurrence, will a sitting judge go the next step for the trifecta: pen the majority, concur (by writing or joining the concurrence), and write a separate opinion in dubitante, all in the same case? Who knows, but at the very least, I’d say there is an outside shot.