It is axiomatic that when a majority of the justices on the U.S. Supreme Courts join a lead opinion written by one of the justices, that opinion is precedential on the issues addressed by that opinion. This is true even if some or all of the justices joining a lead opinion write separate concurring opinions.
For example, in Lee v. Weisman, a 1992 Supreme Court decision involving prayer at high school graduation ceremonies, Justice Anthony M. Kennedy wrote the lead opinion, joined in full by Justices Harry A. Blackmun, John Paul Stevens, Sandra Day O’Connor and David H. Souter. Thus, Kennedy’s opinion was joined by a majority of the justices and his opinion was binding precedent in its entirety. This was the case despite the fact that each of the four justices who joined his lead opinion either wrote or joined concurring opinions that expressed views that differed from Kennedy’s to some extent.
On the other hand, where the lead opinion is not joined by a majority of the court, it is necessary to look to concurring opinions to piece together the holdings of the court. If a majority of justices adopt a single rationale for the outcome, even without joining a single opinion, that rationale constitutes the holding of the court. And, as the court held in Marks v. United States, where a majority does not adopt a single rationale, the holding of the court is the position taken by those justices concurring in the judgment on the narrowest grounds.
The Pennsylvania Supreme Court’s practice is similar. In fact, in its 2006 decision in McNeil v. Jordan, the court cited Marks and specifically adopted the same rule for determining the holding of a prior case without a majority opinion.
Yet, it may be difficult to apply this rule to the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Liston. The question in Liston was whether a criminal defendant granted the right to file a notice of appeal nunc pro tunc was also permitted to file post-sentence motions nunc pro tunc. In a lead opinion by Justice Jane Cutler Greenspan, the court held that the Superior Court had erred in answering this question in the affirmative.
Only five justices participated in the decision and at the end of the decision, where the court traditionally notes which justices joined the majority opinion, there was no indication that any of the other four participating justices joined the majority. Rather, Chief Justice Ronald D. Castille wrote a concurring opinion, joined by two other justices, and Justice Max Baer wrote a separate concurring opinion. Thus, while the lead opinion was joined by only a single justice and the chief justice’s opinion was joined by a majority of the justices participating in the case, the latter was still labeled a “concurring” opinion.
The chief justice began his opinion — which was longer than the lead opinion — by noting that he joined “the majority opinion” (presumably Greenspan’s lead opinion), with the exception of that opinion’s primary rationale for reversing the Superior Court. The chief justice explained that he wrote a separate opinion, “not only to explain my view of the nature of the Superior Court’s error but also to express my belief that the circumstances in this case provide a greater and additional reason for this court to counsel the lower courts not to take affirmative steps” to undermine the court’s 2002 precedent in Commonwealth v. Grant on the basis of a supposed exception created in its 2003 decision, Commonwealth v. Bomar. The chief justice then proceeded to make a lengthy argument for severely limiting the Bomar exception so that criminal defendants were not afforded “both accelerated and multiple rounds of collateral review” of their convictions.
So, are the views reflected in the chief justice’s opinion regarding post-conviction review now the law of the commonwealth? They were joined by three of the five justices participating in the case. Three out of five justices is clearly a majority. And under Rule 3102(a) & (d) of the Pennsylvania Rules of Appellate Procedure, a majority decision constitutes a determination of the court. Yet, the chief justice himself referred to the lead opinion, which was joined expressly by only a single justice (and the reasoning of which was rejected by the other four justices), as the “majority” opinion.
Only time will tell if the chief justice’s opinion is followed by lower courts as binding precedent or whether the Supreme Court itself invokes it as one if its prior holdings. For now, the single-justice majority opinion stands as the decision of the Supreme Court in Liston.
This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.
Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com
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