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By Justice Jay Mitchell and Lars A. Longnecker

You’re hard at work on your brief for an Alabama court. The issue before you is governed by Alabama law, and you’ve just found an Alabama Supreme Court opinion that is on point.

When you scroll to the bottom of the opinion, you see that in addition to the justice who authored the opinion, three justices concurred and three justices concurred in the result, while two justices dissented. So, seven concurs and two dissents, right? And with this vote line, you can now cite the opinion as the majority opinion of the court and binding precedent in Alabama, right?

Not so fast.

Lawyers should know that not every opinion issued by the Alabama Supreme Court and published in the Alabama Reporter constitutes binding precedent.[1] Rather, the doctrine of stare decisis applies only to those opinions in which a majority of the court has expressed agreement on a point of law that is integral to the court’s decision.[2]

There are nine justices on the Alabama Supreme Court, and, at its simplest, this means that an opinion is binding precedent when five or more justices have concurred in that opinion.

But not all types of concurrences are the same, and it’s not always as easy as skipping to the vote line at the bottom of an opinion and counting the number of justices whose names appear next to some version of the word “concur.” Sometimes, it’s not possible to determine what, if any, precedential value an opinion has until after you’ve carefully read that opinion and the accompanying special writings to discern exactly where the justices’ agreement lies.

Path of a Case at the Alabama Supreme Court

To understand the vote line of an Alabama Supreme Court opinion, it’s helpful to know the path a case takes when it’s filed here. In contrast to the United States Supreme Court – where a justice is assigned opinion-writing duties for a case only after some preliminary discussion and an initial vote – cases filed in the Alabama Supreme Court are assigned to individual justices on a rotating basis after briefing is completed, without discussion or analysis of the case beforehand.

For some extraordinary cases like petitions for the writ of mandamus and permissive appeals filed under Rule 5, Ala. R. App. P., the path is different. These cases are first considered by the court on its weekly miscellaneous docket, at which time the court conducts an initial review to determine whether to accept the case. If a majority of the court agrees to accept the case, the court orders full briefing and, once briefing is complete, the case is assigned to the next justice up in the rotation – unless that justice dissented from the decision to accept the case. In that circumstance, the dissenting justice is skipped, and the case is assigned to the next justice in the rotation who did not dissent from the decision to accept the case.

The justice to whom a case is assigned (or JTWA in court parlance) then works up the case, ultimately drafting either a proposed opinion or a memorandum recommending that the case be disposed of by order without an opinion. (Because orders disposing of a case have no precedential value outside of that particular case, we focus in this article only on cases decided by opinions.) Monthly, these proposed opinions are then circulated to the other justices for review.

Notably, not every opinion is circulated to every justice for a vote. Rather, as set forth in Rule 16, Ala. R. App. P., the court is authorized to consider most cases in five-justice divisions. The court has historically divided itself into two five-justice divisions headed by the two senior associate justices (with the chief justice sitting in both divisions). Most opinions are first circulated only to the other four justices sitting in the JTWA’s division, and if the four other justices in that division agree with the JTWA’s recommended disposition of a case, the opinion may be released without being considered by the other four justices. But if even one justice in the division dissents, the case is forwarded from that division to the court’s monthly general conference, where it is considered by the entire court.

Some opinions are circulated directly to general conference for consideration by the full court. These include death-penalty cases, cases in which the JTWA is recommending that the judgment of an intermediate court of appeals be reversed, disbarment proceedings, and utility-rate cases, among others. Additionally, any opinion deciding a case that was previously considered by the entire court on the weekly miscellaneous docket is circulated directly to general conference. It’s the court’s policy that once a justice participates in a case, that justice has the right to continue participating until the case is resolved.

Voting

After reviewing the proposed opinions that are circulated, the justices enter their preliminary votes. These votes may change as the justices continue to discuss the case, but eventually, each justice will finalize their vote and that vote will be printed on the vote line at the end of each opinion. These votes can take various forms.

1. Concur (C)

The most common vote is probably “concur.” When a justice concurs in an opinion, it is presumed that the justice is in complete agreement with the opinion. The justice authoring the opinion is also counted as a C vote.[3]

1. Concur specially (CS)

A justice concurs specially when the justice agrees with everything in the main opinion but wants to write separately to make some additional point. For example, a justice may want to identify an equally correct alternate rationale that supports the court’s judgment. See, e.g., Bonner v. Lyons, Pipes & Cook, P.C., 26 So. 3d 1115, 1126 (Ala. 2009) (Lyons, J., concurring specially) (explaining that he “concur[s] fully in the main opinion” but writes specially “to offer an alternative basis” for the court’s judgment). Or a justice may write to explain how that justice voted as it relates to a previous case involving the same issue. See, e.g., Brock v. Kelsoe, 335 So. 3d 624, 632 (Ala. 2021) (Mitchell, J., concurring specially) (explaining how the evidence in Brock differed from the evidence in Taylor v. Hanks, 333 So. 2d 3d 132 (Ala. 2021), a similar case in which Justice Mitchell declined to join the majority).

Finally, in some cases a justice may concur specially to flag an issue that merits further attention later. These writings may be directed to the legislature, see, e.g., State v. Two White Hook Wreckers, 337 So. 3d 735, 740 (Ala. 2020) (Bryan, J., concurring specially) (encouraging the legislature to review Ala. Code § 28-4-287 (1975), as it relates to forfeiture actions), or to parties in future cases. These latter types of writings are especially important as they may indicate the path by which a party can prevail in a future case. See, e.g., Ex parte BBH BMC, LLC, 299 So. 3d 961, 967 (Ala. 2020) (Mendheim, J., concurring specially) (expressing a willingness to consider a premises-liability claim against a health-care provider outside the structure of the Alabama Medical Liability Act (“the AMLA”), §§ 6-5-480 to -488 and § 6-5-540 to -552, if appropriate, but concurring with the majority opinion because the plaintiff had conceded that the AMLA governed his case).

A CS vote on the vote line is treated exactly like a C vote when counting the votes to determine whether a majority exists.

1. Concur in the result (CR)

A concur-in-the-result vote indicates that the justice agrees with the ultimate judgment of the opinion, i.e., whether to affirm or reverse the lower court’s judgment. (The equivalent vote by a justice on the United States Supreme Court would be a vote “concurring in the judgment.”) But when a justice has entered a CR vote, the justice also presumably disagrees with some aspect of the opinion.

Because a justice has no obligation to write separately to explain a CR vote, it’s not always possible to discern the basis of that disagreement. It may be that the justice thinks the case should have been decided on an alternate basis and that the opinion’s analysis is faulty. Or the justice may feel the opinion includes dicta that should have been left out.

It’s also possible for a CR vote to be based on less substantive reasons – a justice may not like the tone or certain language used in the opinion. And in some cases, justices might enter a CR vote simply because they do not like that there is an opinion; they’d prefer, for example, to affirm the lower court’s judgment without an opinion under Rule 53, Ala. R. App. P.[4]

In sum, it’s impossible to know the extent to which a justice agrees with an opinion when the justice has entered a CR vote and hasn’t written separately to explain that vote. Accordingly, a justice who has concurred in the result without writing is not included with the majority when determining whether the opinion has precedential value. As such, a case like Washington v. Hill, 960 So. 2d 643 (Ala. 2006) – in which four justices concurred and five justices concurred in the result without writing – is not binding precedent even though the court’s decision to affirm the trial court’s judgment was unanimous.

The calculus may change, however, when a justice writes to explain a CR vote. In those cases, it’s often possible to tell what aspects of the opinion the justice concurring in the result agrees with, and the justice’s vote is no different than a run-of-the-mill C vote as to those aspects. In this circumstance, the justice may even frame the vote as “concurring in part and concurring in the result” (CP/CR) to manifest this intent more clearly. See, e.g., Barnett v. Jones, 338 So. 3d 757, 769 (Ala. 2021) (Mendheim, J., concurring in part and concurring in the result) (“I concur with Part B. of the ‘Analysis’ section of the main opinion, and I concur in the result of the main opinion affirming the Montgomery Circuit Court’s judgment.”). But CR and CP/CR writings are not always this explicit, and careful reading is often required to determine the extent to which a CR vote goes toward joining the opinion.

1. Concur in part and dissent in part (CP/DP)

The meaning of this vote is fairly self-evident: a justice who concurs in part and dissents in part agrees with some part of the judgment but disagrees with another part. Common situations in which a justice might enter a CP/DP vote include cases where a judgment has been entered in a multi-claim action and the justice agrees with the opinion’s conclusion as to some of those claims but disagrees as to others, see, e.g., Hollis v. Brighton, 885 So. 2d 135, 145-46 (Ala. 2004) (See, J., concurring in part and dissenting in part), Hollis, 885 So. 2d at 146 (Stuart, J., concurring in part and dissenting in part), and cases in which a justice agrees with the opinion that a judgment awarding a plaintiff damages should be affirmed, but disagrees with the court’s decision to affirm the amount of awarded damages, see, e.g., ConAgra, Inc. v. Turner, 776 So. 2d 792, 799 (Ala. 2000) (Houston, J., concurring in part and dissenting in part).

Because a justice who concurs in part and dissents in part is obligated to write and explain the CP/DP vote, it is usually not difficult to read that writing and discern those parts of the main opinion in which the justice concurs. The justice’s vote may effectively be counted as a C vote as to those parts when determining whether the opinion has precedential value.

1. Dissent (D)

A dissenting justice rejects the result reached by the opinion. A justice is not obligated to write and explain the basis for a D vote, but as is the case with all other votes, if the dissenting justice writes separately, it may be possible to find some agreement with the opinion that could give it precedential value in some respect. But that would be uncommon, and a D vote is generally not counted as part of the majority for any purpose.

1. Recusals (R)

A justice whose recusal is noted on the vote line was not involved in deciding the case. Once the basis for recusal is discovered, the recusing justice does not participate in discussion about the case, nor does the justice enter a vote. Effectively, the size of the court “shrinks.” If one justice is recused, it is an eight-justice court, and five justices are still needed for a majority. But if two justices are recused, it is a seven-justice court and only four justices are needed to form a majority. Thus, for example, the opinion in Naftel v. State ex rel. Driggars, [Ms. 1200755, Feb. 18, 2022] ___ So. 3d ___ (Ala. 2022), is binding precedent with only a four-justice majority because two justices recused themselves.

1. Not sitting (NS)

Finally, while it is not technically a vote and there is no corresponding entry on the vote line, justices will occasionally “not sit” on a case even if they are not recused. For example, a justice new to the court may choose not to vote on a case that was orally argued before the justice joined the court. Or a justice may have a relationship with an attorney or party in a case that doesn’t disqualify the justice, but the justice nonetheless deems it prudent not to participate. Unlike recusal, the justice’s absence does not affect the size of the court. Thus, if two justices are not sitting in a case in which the other seven justices vote, five votes are still needed to form a majority.[5]

Reading the Vote Line

With an understanding of the different votes, you’ll normally encounter on a vote line, you’re well equipped to understand the import of those votes in any given case. If you’ve read many Alabama Supreme Court opinions, you’ve probably noticed that the vast majority of the time there are five or nine justices voting in any given case. In either of these situations, the basic rule is the same – five C or CS votes will always make the opinion binding precedent.[6] If the vote line contains at least five of those votes, no further analysis is needed, and you can confidently treat the holdings of the opinion as binding precedent. But if there are not five C or CS votes, and there are CR, CP/CR, or CP/DP votes accompanied by writings explaining those votes, further work is required to determine whether the opinion has any precedential value.

Take the court’s recent opinion in Haddan v. Norfolk Southern Railway Co., [Ms. 1190976, Feb. 4, 2022] ___ So. 3d ___ (Ala. 2022), as an example. A quick glance at the opinion shows that it was authored by Justice Stewart; Justices Bryan, Mendheim, and Mitchell concurred; Justices Shaw and Sellers concurred in part and dissented in part; Justice Bolin concurred in the result; Chief Justice Parker dissented; and Justice Wise recused herself.

Our first step in understanding the vote line is to recognize that we have an eight-justice court due to Justice Wise’s recusal. Accordingly, five C or CS votes are needed to form a majority. There are only four C votes, however, so we don’t have a majority opinion; we have only, in court parlance, a “plurality opinion.”[7] But does that plurality opinion have any precedential value?

A review of Justice Shaw’s CP/DP special writing – which Justice Sellers joined – reveals that it does. In that writing, those justices indicate that they in fact “concur in the main opinion insofar as it affirms the trial court’s threshold evidentiary determination striking some of [the appellant’s] deposition testimony as hearsay.” Haddan, ___ So. 3d at ___ (Shaw, J., concurring part and dissenting in part). Thus, six justices have concurred with that aspect of the opinion, and Haddan can therefore be comfortably cited as precedent with regard to its hearsay analysis.

Citing a Supreme Court Decision

Once you’ve determined that an opinion is binding precedent for a proposition of law, it can be cited as such to any Alabama court.[8] Under the doctrine of vertical stare decisis, state trial courts and the intermediate appellate courts are bound to follow the decision. Federal courts considering issues of Alabama law should follow the decision too. See West v. American Tel. & Tel. Co., 311 U.S. 223, 236 (1940) (“[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law unless it has later given clear and persuasive indication that its pronouncement will be modified, limited or restricted.”).

Under the doctrine of horizontal stare decisis, the Alabama Supreme Court will usually follow its own precedent as well. But it’s always possible that the court might reconsider and overrule a previous decision. If you think a decision was wrongly decided, don’t be afraid to ask the court to overrule it.

It’s not often stated, but it’s the policy of this court not to overrule a decision unless a party has specifically asked the court to do so, see Eickhoff Corp. v. Warrior Met Coal, LLC, 265 So. 3d 216, 224 (Ala. 2018), and you don’t want to miss an opportunity to do everything you can to advance your client’s case.

But what about those opinions that don’t have a majority and are not binding precedent? Should a lawyer avoid citing these opinions? Not necessarily.[9] To be sure, if you’re considering citing a plurality opinion, first make sure you’ve done all your research and confirm that there is not a different opinion you can cite that is binding precedent. Many times, however, there is not – a plurality opinion is the best you can do. Plurality opinions are often the product of difficult cases where there is not a wealth of caselaw on an issue. When that’s true, a plurality opinion can still be cited for its persuasive value, and that opinion may still be the key to winning your case. Indeed, it’s possible that the rationale of the court in a plurality opinion will later become the rationale of the court in a majority opinion. See, e.g., Ex parte Wood, 852 So. 2d 705, 709 n.3 (Ala. 2002) (noting that Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), was a plurality opinion but that its rationale was later expressly adopted by a majority of the court in Ex parte Butts, 775 So. 2d 173, 177-78 (Ala. 2000)).

Of course, be sure to buttress your citations to plurality opinions with citations to treatises and caselaw from other jurisdictions that support your position.

And, importantly, when citing a plurality opinion, be sure to always acknowledge it as such. Failing to do so will make you look sloppy at best and deceitful at worst – neither of which will impress the court or increase your chances of winning the case.

Endnotes

[1] The Alabama Reporter, which is extracted from the Southern Reporter, is the official Reporter of the Alabama Supreme Court. Its published volumes contain the official version of court opinions and, while opinions accessed in Westlaw, Lexis, or other computerized databases should mirror that version, in the event of a discrepancy the Alabama Reporter version controls.

[2] Dicta in an opinion is not binding in future cases even if a majority of the court concurred in the opinion containing the dicta. See Ex parte Patton, 77 So. 3d 591, 595, 596 (Ala. 2011) (explaining that certain language in Ex parte Trinity Industries, Inc., 680 So. 2d 262 (Ala.1996), was “not essential” to the court’s “ultimate holding” in that case and was therefore “nothing more than dicta and was not binding in subsequent cases”).

[3] Be careful not to add an extra C vote for the author when considering a per curiam opinion; in these cases, the vote of each participating justice is found on the vote line. Opinions are often issued per curiam when more than one justice has made substantial contributions to the opinion such that the opinion can no longer be attributed to only one author.

[4] Justice Mitchell will generally enter a CR vote only when the opinion reaches the right outcome for what he believes is the wrong reason. See, e.g., Ex parte Jones, [Ms. 1210194, Sept. 16, 2022] ___ So. 3d ___, ___ (Ala. 2022) (Mitchell, J., concurring in the result) (explaining his disagreement with the majority opinion’s rationale but nonetheless concurring in the result because the Alabama Court of Criminal Appeals’ affirmance of the petitioner’s conviction was ultimately correct for a different reason). In other words, it’s not enough that Justice Mitchell believes there might be an equally correct alternate rationale or might phrase some things differently – if the analysis in the opinion is not wrong, it gets a C or a CS.

[5] Incidentally, a justice cannot choose to “not sit” in a case if that decision would result in an even split among the remaining justices. In this scenario, the justice is required to either vote or formally enter a recusal so that the chief justice can appoint a special justice to participate and break the tie.

[6] Because only five justices consider cases that are submitted to division conference, all of those justices must enter a C or CS vote for the opinion to be binding precedent – even one CR or CP/CR vote at this stage will keep the opinion from becoming binding precedent. In this circumstance, the JTWA has the discretion to release the opinion even though it isn’t binding precedent or to send the case to general conference in an attempt to get a majority. A justice’s decision here will usually be based on the law and facts of that specific case. If the case is a “unicorn” with issues that are unlikely to be seen again or if the opinion is merely redundant to existing caselaw, the JTWA may choose to have the opinion released even though it will not be binding precedent. But if the case involves a murky area of the law and it might be helpful to the bench and bar to have binding precedent, it is more likely that the JTWA will send the case to general conference in the hopes of picking up five C votes.

[7] A plurality opinion has been described as “an appellate opinion without enough judges’ votes to constitute a majority but having received the greatest number of votes of any of the opinions filed.” Bryan A. Garner, Garner’s Dictionary of Legal Usage 683 (3d. ed. 2011). When there is no majority opinion in a case, the plurality opinion will typically be the main, or lead, opinion. But not always. See, for example, Ex parte Alabama Power Co., [Ms. 1210104, June 30, 2022] ___ So. 3d ___ (Ala. 2022), in which Justice Mitchell’s special writing concurring in the result was joined by two other justices and was the plurality opinion.

[8] It probably goes without saying but, when citing and quoting an Alabama Supreme Court opinion, be sure to quote the opinion – not the headnotes furnished by West or any other publisher. Those headnotes are not written or approved by the court and may or may not accurately reflect what was decided in the opinion.

[9] But appellate practitioners should take care never to allege conflict with a plurality opinion as a basis for seeking certiorari review from a decision of the Alabama Court of Civil Appeals or the Alabama Court of Criminal Appeals under Rule 39(a)(1)(D), Ala. R. App. P., because you can’t have conflict with a case that isn’t binding precedent. See Ex parte Ball, 323 So. 3d 1187, 1187 (Ala. 2020) (Parker, C.J., concurring specially). Better to find another opinion or frame your case in terms of an issue of first impression under Rule 39(a)(1)(C).

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