An Interesting Massachusetts Appellate Procedure Rule

|The Volokh Conspiracy |

Reader Max Bauer, responding to my opinion about a rare five-judge federal appellate panel opinion, writes:

As you may know, Massachusetts also normally uses a 3-judge appellate panel on each appeal. I thought you might be interested in learning about that rule's exception.

Here's how it works. Most Mass. appeals are heard by a 3-judge panel of the Appeals Court and decided in an unpublished opinion by only those 3-judges. Therefore, the opinion only reflects the views of a small fraction of the Appeals Court.

If there is a dissent, however, the opinion gets circulated to the full bench of the Appeals Court and has to then reflect the majority view of the entire Court. It's possible, of course, that a majority of the full Court will agree with the dissenting judge of the 3-judge panel. Therefore, the dissent becomes the majority and the prevailing party differs based on recomposition of the court members on the case. (It also means that, as in Warren, there can be two dissenting Appeals Court opinions.)

And some links:

https://www.mass.gov/rules-of-appellate-procedure/appellate-procedure-rule-24-justices-participation

See Sciaba Construction, fn. 2, http://masscases.com/cases/app/35/35massappct181.html#foot2; Warren, fn. 1 http://masscases.com/cases/app/87/87massappct476.html#foot1http://masscases.com/cases/sjc/475/475mass530.html; and Arias, fn. 1 http://masscases.com/cases/app/92/92massappct439.html#foot1 (which actually is even more complicated because one of the original judges was elevated to the Supreme Judicial Court), http://masscases.com/cases/sjc/481/481mass604.html

That's one thing I try to teach my students: Every state has its own twists on the legal rules; there's a lot of similarity from state to state, but you should always be aware of the possible differences (both as a lawyer and a student looking for good paper topics). If Nebraska can have a unicameral legislature ….

NEXT: Today in Supreme Court History: January 22, 1890

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  1. Interesting how few of such twists there are.

    (In the other branches as well. Eg. every state except Nebraska has a presidential system with two chambers of the legislature. In Nebraska they don’t have a Senate.)

    I remember reading a paper a few years ago discussing this question. IIRC, there used to be more differences between the states, but in the progressive era lots of things got overhauled and most states ended up copying the federal system in most areas.

    If you think about this from an institutional design perspective, you’d expect a lot more differences, particularly among the founding states. (It is only natural that the other 37 states would copy a lot of the institutional framework from the original 13.) Different solutions are optimal depending on the conditions in each state (e.g. do you really need a senate?), and you’d think that a simple combination of chance and path dependence would produce a lot more differences than you actually see.

    1. It would be interesting to see a state experiment with a parliamentary system.

  2. The Georgia Court of Appeals used to have a similar procedure, where a dissent in the initial 3-judge panel required the case to be considered by a 7- or 9-judge panel (the entire court has consisted of 12 or 15 judges at different times). Apparently that was changed recently to allow 2-1 decisions. Curiously, a 3-judge panel can now also overrule a prior ruling, after “consulting” with the other judges (who can vote to have en banc consideration if they want).

    1. Although a panel decision is not considered binding precedent unless it is unanimous, and a panel can only overrule a case if it is unanimous. So many quirks.

  3. The Oregon Court of Appeals has a practice not specified in any rule of allowing a panel to refer any case to the full court after the panel opinion is approved, for any reason, although a dissent and overruling prior precedent are the primary reasons. If a majority agree, the case is taken up en banc. There is no way for litigants to request en banc review.

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