In 1904, North Carolina Supreme Court Justice Robert M. Douglas wrote a separate opinion in a case called Westbrooks v. Wilson, 135 N.C. 400, expressing some reservations about the majority’s opinion. He signed his opinion “Douglas, J. (dubitante),” using the Latin word for “doubting.”
No North Carolina judge has entered a “dubitante” opinion since. Until now.
A panel of the North Carolina Court of Appeals issued three separate opinions in State v. Hardaway this week—a per curiam opinion, a concurrence by Chief Judge Dillon, and an opinion “concurring dubitante” by Judge Hampson.
The case sadly involves a charge of first-degree murder, but along the way involves a fascinating question of statutory interpretation: does a drive-by shooting count as discharging a firearm “within” an enclosure under N.C. Gen. Stat. § 14-34.10? As Judge Hampson sees it, the statute would have to say “from within” to cover a drive-by. Alas, another panel of the Court of Appeals decided just a few weeks ago in State v. Jenkins that a drive-by does count under that statute. Since one panel of the Court of Appeals cannot overrule an earlier panel of the same court on the same issue, Judge Hampson recognized that he was bound to follow it under In re Civil Penalty. Chief Judge Dillon, in his State v. Hardaway concurrence, likewise found himself bound by State v. Jenkins.
This situation comes up a fair bit. A Court of Appeals judge can’t really dissent when there’s a prior panel opinion on point, but might not want to fully embrace a prior opinion with which (s)he disagrees.
I, for one, think a “concurrence dubitante” is a concise way of flagging the conflict for further review, whether via en banc review before the Court of Appeals or discretionary review before the Supreme Court.
Although our fine state has been a stranger to the opinion dubitante for over a hundred years, that hasn’t been the case nationwide. By my count, there have been about a dozen such opinions penned by federal circuit court judges over the last 24 months, although none here in the Fourth Circuit since, well, ever.
Want to learn more? There’s a short law review essay on the topic. Czarnezki, Jason J. (2006) “The Dubitante Opinion,” Akron Law Review: Vol. 39: Iss. 1, Article 1. And the National Law Journal had a piece on it just last year. Zoppo, Avalon (2024) “When in Doubt: What’s a Dubitante Opinion, and Why Do Judges Write Them?“
Will this become the next hot trend? I’m dubitante.