(In re: Paul W. Ball v. State of Alabama) (2020)

WRIT DENIED. NO OPINION.

Paul W. Ball alleges that the decision of the Court of Criminal Appeals in this case conflicts with Ex parte Harper, 189 So. 3d 1 (Ala. 2015), a plurality decision of this Court. I concur in the Court's denial of certiorari review. I write specially to explain why conflict with a plurality decision is not ordinarily a basis for certiorari review.

The applicable appellate rule provides: “[P]etitions for writs of certiorari will be considered only ․ [f]rom decisions in conflict with prior decisions of the Supreme Court of the United States, the Supreme Court of Alabama, the Alabama Court of Criminal Appeals, or the Alabama Court of Civil Appeals ․” Rule 39(a)(1)(D), Ala. R. App. P. (emphasis added). The manifest purpose of this provision is to allow this Court to exercise its constitutional duty to supervise the lower courts, see art. VI, § 140(b)(2), Ala. Const. 1901; see also § 12-2-7(3), Ala. Code 1975. In particular, by allowing certiorari review of decisions that conflict with a “prior decision” of an appellate court, Rule 39(a)(1)(D) provides a vehicle for this Court to ensure that the courts of appeals decide cases consistently with controlling precedent and for this Court to resolve inconsistencies between binding precedents of the courts of appeals. Therefore, a “prior decision” is necessarily a prior case that constitutes binding precedent on a relevant point. For this reason, plurality decisions like Harper are not “prior decisions.” See Ex parte Dearman, 322 So.3d 5, 6 n.1 (Ala. 2020). That is, if, in the prior case, a particular rationale was not agreed with by a majority of the court, that rationale is not part of a “prior decision” for purposes of Rule 39(a)(1)(D).

Of course, if, in the prior case, a particular rationale supporting the result was agreed with by majority of judges, even in separate opinions, the zone of their agreement constitutes binding precedent and thus a “prior decision.” See Ex parte Lashley, 323 So.3d 1207, 1208 (Ala. 2020) (Parker, C.J., dissenting from denial of certiorari review); cf. Holk v. Snider, 295 Ala. 93, 94, 323 So. 2d 425, 426 (1976) (“[T]he resolution of an issue must be concurred in by the requisite number of judges[;] ․ here, ․ there was a concurrence of five judges in the determination that specific performance was warranted. This is the law of the case and was binding upon the trial court.”); see generally Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1942 (2019). Conceptually, that cobbled-majority effect is no different from what would have occurred if the old tradition of seriatim opinions had continued. Cf. generally John P. Kelsh, The Opinion Delivery Practices of the United States Supreme Court 1790-1945, 77 Wash. U. L. Q. 137, 139-42 (1999); Justin Marceau, Plurality Decisions, 45 Conn. L. Rev. 933, 945-48 (2013); Peter M. Tiersma, The Textualization of Precedent, 82 Notre Dame L. Rev. 1187, 1202-03 (2007).

Here, because Harper was a nonbinding, bare plurality decision, Ball could not properly allege conflict with it. Of course, as to a question for which the only on-point case is a plurality decision of this Court, there is necessarily no binding precedent. And without such precedent, the question is one of first impression for this Court. See Black's Law Dictionary 266 (11th ed. 2019) (defining “case of first impression” as “[a] case that presents the court with an issue of law that has not previously been decided by any controlling legal authority in that jurisdiction”). Thus, in a case where the only precedent is a plurality decision, a party will be astute to recognize that the case may be cognizable as involving a question of first impression under Rule 39(a)(1)(C) (providing for certiorari review of “decisions where a material question requiring decision is one of first impression for the Supreme Court of Alabama”).

MENDHEIM, Justice.

Shaw, Bryan, and Mitchell, JJ., concur. Parker, C.J., concurs specially.