Reason or Result: Determining What Controls in a Plurality Opinion

BACKGROUND

A majority opinion is exactly that—an opinion that is shared by a majority of the Justices on the Supreme Court. But what happens when there is no majority? A plurality opinion results when a majority of the Justices agree on the outcome of a case, but disagree on the reasoning behind the decision. In the case of a plurality opinion, it may be difficult to determine the exact holding of the case. This becomes especially problematic in a legal system that embraces the principle of stare decisis—it is especially difficult to set a judicial precedent when it is unclear what the holding is in the first place. In Marks v. United States (1977), the Supreme Court offered some insight into deciding which opinion controls when faced with a plurality opinion:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

The opinion established the “narrowest grounds” test in order to provide guidance to lower courts as they set out to interpret the Supreme Court’s plurality opinions. The primary objective in establishing the test was to promote predictability in the law by ensuring adherence to Supreme Court precedence. Ultimately, the Marks decision may have added to the confusion rather than affording the clarity it intended, which leads us to the circuit split at issue.

THE ISSUE

The concept of “narrowest grounds” is undoubtedly vague, leaving ample room for interpretation. Because the Supreme Court left the notion undefined, it is unsurprising that the circuit courts have been unable to arrive at a consensus. Over forty years have passed since the Marks decision, and the circuit courts continue to struggle in determining what the Supreme Court meant by “narrowest grounds.” The Ninth Circuit even went so far as to acknowledge in United States v. Davis (2016) that “the Marks inquiry at times has baffled and divided the lower courts that have considered it, and that the test is more easily stated than applied.”.

THE SPLIT

In the years since Marks, two main definitions have emerged in an attempt to make sense of the “narrowest grounds” test. One interpretation focuses on the reasoning of the different opinions, and the other focuses on the ultimate outcome. Although some courts have adopted slightly more nuanced approaches, the reason-based and result-based methods appear to be leading the discussion.

The reasoning approach essentially involves examining the various opinions in a case and finding a position that a majority of Justices would seemingly support. Essentially, this method requires an observer to find a consensus in reasoning among the various opinions. The D.C. Circuit, which embraces this approach, explained in King v. Palmer (1991) that the narrowest ground under this approach “must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.”. In Pedcor Management Company Welfare Benefit Plan v. Nations Personnel of Texas, Inc. (2003), the Fifth Circuit employed a form of the reasoning approach by analyzing each of the concurring opinions and finding a common ground among just the concurrences. The holding would be the narrowest rationale supported by a combination of all the concurring opinions. Beyond the Fifth and D.C. Circuits, the Ninth Circuit recently clarified in Davis that it adopted the reasoning-based approach. It used an analogy to substantively explain how it determines the Court’s holding: The “‘narrowest grounds’ envisioned by Marks” are those in which “the plurality and concurring opinions can[] be explained by a diagram in which a circle representing the reasoning of [the controlling opinion] sits neatly within a circle representing the reasoning of the plurality opinion.”

In comparison, the outcome approach focuses instead on the end result, as opposed to the reasoning. This method typically involves selecting a concurrence to serve as the controlling opinion because, although the reasoning may differ, a concurring Justice concurs in judgment, and thus agrees with the overall result. In other words, as the Third Circuit explained in Planned Parenthood of Southeast Pennsylvania v. Casey (1991), the narrowest ground under this approach “would necessarily produce results with which a majority of the Justices from the controlling case would agree.” The Seventh Circuit implicitly joined the Third Circuit in adopting the results-based approach, as it noted several times in Ben’s Bar, Inc. v. Village of Somerset (2003) that the “controlling opinion” is the “concurrence . . . as the most narrow opinion joining four other Justices in the judgment of the Court.”

LOOKING FORWARD

Although plurality opinions are far outnumbered by majority opinions—the Court publishes on average about three plurality opinions per term—they are still important to understand. Plurality opinions do not always provide clear guidance to lower courts and are viewed as less binding than majority opinions—but they also provide unique insight into the Supreme Court and its decision-making process. The confusion over how to determine the opinion decided on the “narrowest grounds” illustrates, perhaps clearer than any other circuit split, the need for the Supreme Court to step in and clarify its jurisprudence. Circuits disagreeing over the technical aspects of statutory interpretation or how to apply an unclear majority opinion in different circumstances are inevitable—but at a core level, circuits should know which opinion is binding on them, and to what extent.

Agree to Disagree: Defining Submission to Police Authority

Issue

The Fourth Amendment of the Constitution protects against unwarranted searches and seizures, which begs the question—what exactly constitutes a seizure? In California v. Hodari D. (1991), the Supreme Court held that a “seizure” requires either physical force or submission to police authority. In the wake of this decision, circuit courts have struggled to define the phrase, “submission to police authority,” resulting in a split of authority. The emergent view in the Courts of Appeals, although admittedly uneven within the circuits, is that when a suspect does nearly anything more than pausing briefly, including any significant verbal engagement with the officer, that action is strong evidence of submission.” United States v. Camacho (1st Cir. 2011). Some courts have adopted this rather broad interpretation of the term, imparting a low standard for submission. Other courts have adopted a narrow view, requiring additional conduct to meet the standard.

The issue of defining submission is incredibly significant because of its impact on other aspects of a case. For example, whether or not a defendant is deemed to have submitted to police authority can determine what evidence may be presented at trial, which can significantly influence the outcome of a case. The Fourth Amendment serves to protect against unwarranted invasions of privacy by requiring probable cause. The Fourth Amendment “prohibition on unreasonable searches and seizures is enforced through the exclusionary rule, which excludes evidence seized in violation of the Fourth Amendment.” United States v. Camacho (1st Cir. 2011).

The Split

The following circuits have adopted the view that brief compliance followed by flight does not constitute submission.

  • Second Circuit: In United States v. Huertas (2d Cir. 2017), the court held that, in dealing with the police, conduct that amounts to evasion cannot be considered submission.
  • Third Circuit: In direct contradiction with the Tenth Circuit’s ruling, the court in United States v. Valentine (3d Cir. 2000) held that a brief pause does not make for a submission, and therefore the defendant in this case was not seized within the Fourth Amendment meaning.
  • Ninth Circuit: In United States v. Hernandez (9th Cir. 1994), the court rejected the defendant’s argument that he was “seized” because he briefly submitted to the police officer’s show of authority before fleeing. The court here requires a discernible showing of compliance to constitute submission:

“We decline to adopt a rule whereby momentary hesitation and direct eye contact prior to flight constitute submission to a show of authority. Such a rule would encourage suspects to flee after the slightest contact with an officer in order to discard evidence, and yet still maintain Fourth Amendment protections.”

The following circuits have adopted the view that brief compliance followed by flight does constitute submission.

  • First Circuit: In United States v. Camacho (1st Cir. 2011), the court held that once a defendant responds to questions posed by the police, he or she has submitted to police authority.
  • Tenth Circuit: In United States v. Morgan (10th Cir. 1991), the court held that even the slightest form of compliance, in this case, a momentary hesitation, is enough to constitute submission. The court explains its reasoning as follows:

“Here, the intrusion on Mr. Morgan in regard to the initial attempted questioning by Officer Eubanks and the subsequent exchange between the two was minimal. However, since Officer Eubanks had followed the car in which Defendant was a passenger for several blocks with his red lights flashing; since Officer Eubanks exited from a marked police car, in uniform, and asked the Defendant to hold up; and since Defendant, at least momentarily, yielded to the Officer’s apparent show of authority, we find Mr. Morgan was seized for purposes of the Fourth Amendment during the initial portion of the encounter.”

  • D.C. Circuit: In United States v. Brodie (D.C. Cir. 2014), the court ruled that when a defendant complies with an officer’s orders by engaging in overt acts, such as putting one’s hands on the car, the defendant has submitted to police authority.

Looking Forward

Although the Supreme Court expressly outlined the requirements for a “seizure” in California v. Hodari D. (1991), it still left some questions unanswered—circuit courts were tasked with the responsibility of defining “submission to police authority,” and conflicting rulings resulted. Branden Huertas submitted a petition for writ of certiorari to the Supreme Court in December 2017, in hopes of appealing the Second Circuit’s decision in United States v. Huertas (2017). In the petition, Huertas discusses the split among the lower courts and urges the Supreme Court to review the issue. In his petition for a writ of certiorari to the U.S. Court of Appeals for the Second Circuit, Huertas notes: “The conflict is widely recognized by courts and commentators. It also is deeply entrenched; the courts on either side of the split have acknowledged the contrary reasoning of their peers and have had multiple opportunities to reconsider their positions, but the conflict has persisted. Thus, only this Court can restore uniformity on this important question of Fourth Amendment law.” For further reading, see the petition for writ of certiorari: Huertas v. United States.