The Volokh Conspiracy

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Panel-Packing in the Massachusetts Appeals Court

Legit, but odd.


Intermediate appellate courts (state and federal) generally have many members, but sit in more-or-less-randomly assigned panels, usually of three judges. This of course means that sometimes the views of a three-judge panel won't represent the views of the whole court, and courts generally have means of dealing with that.

In federal courts, this is of course done through en banc rehearing of a three-judge panel opinion by the entire court (or, for the 29-judge Ninth Circuit, by an 11-judge panel of that court). But in Massachusetts, there's a "long-standing practice of the Appeals Court, designed to ensure that published opinions reflect the view of a majority of the Justices":

[P]ublished opinions are considered by the entire court [which now consists of 25 Justices -EV] prior to release. In the case of a dissent, if a majority of all the Justices agrees with the majority of the panel, the decision is published as a two to one decision of the original panel.

If a majority of all the Justices agrees with the dissent, the panel is enlarged to reflect the view of the majority of the court, generally by adding to the panel the two senior Justices who are part of the full court majority. The masthead, in such case, shows the panel as five members, but in effect the decision is that of the entire court.

I just noticed this in a case decided yesterday, so the practice is alive and well. If any Massachusetts lawyers have any extra details on this, I'd love to hear them.