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Court Affirms Removal of Cross, Then Requests Another Appeal

By George Khoury, Esq. on September 12, 2018 | Last updated on March 21, 2019

It's not often that a court will go out of its way to expound on how a prior court got it wrong when it is nonetheless bound to follow that court's precedent.

However, in the recent Bayview Park cross case, the Eleventh Circuit didn't hold back on explaining how the prior Eleventh Circuit panel got it so wrong. Despite the fact that the whole decision could have fit within a few pages, the judges devoted over 80 pages, with each of the panel judges writing separate concurrences practically begging for the en banc court to rehear and overturn the case.

Overturning Circuit Precedent on Precedent?

In short, the appellate court explained that the facts of the Bayview Park Pensacola, Florida case are nearly identical to the Black Rock Mountain cross case out of Georgia. And unfortunately for the proponents of keeping the Pensacola cross, the court found that it was barred from ruling in their favor due to the Black Rock Mountain case due to a longstanding circuit precedent requiring panels to follow prior panel precedent. Only an en banc Eleventh Circuit, or SCOTUS, under the circuit rule, can overturn a prior panel decision.

As one of the concurring opinion's lamented:

"Good law-stare decisis-sometimes leads good judges to follow bad law and write the wrong order. That happened in this case."

Among the gripes the justices had, it is explained rather succinctly, again, in a concurrence:

There is no injury, no harm, and no standing to support jurisdiction in this case, but there is an Eleventh Circuit rule that directs us to affirm the district court based on this flawed precedent."

It is fully expected that an en banc hearing will be requested.

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