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.

Comments

[ReaderY]

This does not seem an appropriate approach.

Fundamental to the judicial process is the ide of hearings, in which judges come in with open minds and hear evidence and argument before making decisions.

It would be reasonable for a majority of the whole court to vacate the panel decision and provide for a new hearing and a new set of judges, as occurs when federal appeals courts decide cases en banc.

But to allow judges who never heard the parties’ arguments and never had a chance to question the parties to simply weigh in with equal weight to the judges who were at the hearing, seems to me to defeat the whole purpose of a hearing.

Yes, the Senate does this when it impeaches minor officials. A committee hears the testimony but the whole Senate gets a vote. But that’s because impeachment proceedings aren’t really fully judicial ones.

This similarly seems more a partially legislative process than a judicial one.

Courts dispense with hearings when the issue is obvious. But if the fact that a panel of the court’s own judges has gone the other way is pretty strong evidence that the issue isn’t obvious, or at least not so obvious as it may seem. Since the court’s own judges actually have disagreed, that’s pretty conclusive evidence that reasonable jurists could disagree, and a hearing wherr judges come in with an open mind ought to be in order.

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But if the fact that a panel of the court’s own judges has gone the other way is pretty strong evidence that the issue isn’t obvious, or at least not so obvious as it may seem.

This in the bigger picture has always annoyed me. If a panel of learned judges can take months to officially disagree on some matter of law, how can it possibly be fair to hold a defendant to that majority opinion?

In the case of the constitutionality of a law, my remedy would be to void the law in its entirety as being too vague, unclear, inconsistent, or just plain defective, and tell the legislature to try again. In the case of government prosecution, toss the charges with no retrial.

Of course, the practical effect would be dissenting judges holding their nose and voting with the majority just to keep the law or prosecution intact. But it really rankles me that judges are allowed to disagree while defendants are expected to know ahead of time which way the majority will rule, and behave accordingly.

[John F. Carr]

The Supreme Judicial Court routinely makes rules of criminal law prospective only. Often the new rule is more lenient than the old rule and they don't want to grant new trials to everybody convicted under the old rule. Sometimes the new rule is stricter and the court makes the rule prospective only on due process grounds. A man was accused of indecent exposure for wearing a thong. The court said in the future that should be considered indecent exposure but he did not have fair notice that his conduct was criminal. The next guy will have fair notice, assuming he reads all the case law. Arguably that was an advisory opinion but the SJC has more freedom than federal courts to issue advisory opinions.

[John F. Carr]

Important cases are reviewed by the Supreme Judicial Court, and are often taken directly by the SJC without waiting for the Appeals Court to decide.

[Brett Bellmore]

I recall reading that there's statistical evidence of panel packing in about half the Circuits.

Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals

The odds that some of these circuits are not rigging the panel selection approaches zero.

[Drewski]

Tell me you only read the headline without telling me you only read the headline.

[Drewski]

Never mind, went to the wrong tab and read something that wasn't what you linked.

[Sidney r finkel]

Isn't this the way the Supreme Court works? But I guess that is okay as far as the Supreme Court is concerned since the majority are ultra conservative Catholics who think it is okay to impose their beliefs and religion on the rest of us, particularly since the Establishment Clause is no longer in the Constitution.

[MikeNY]

In the Third Circuit many (but not all- there are guidelines) opinions are routinely reviewed by the entire court. Although this is supposed to be focused on the question whether the case goes en banc, there is sometimes more informal chatter. I was told by an NJ member of that court that he once read a panel draft in a case involving NJ law; he thought it was wrong. He consulted his colleagues from NJ on the court. They agreed. They told the panel. It nonetheless released the decision. See Third Circuit Internal Operating Procedure 5.5.4 https://www2.ca3.uscourts.gov/legacyfiles/IOPs.pdf