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An Interesting Massachusetts Appellate Procedure Rule

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 appeals are heard by a 3-judge panel of the Appeals Court and decided in an unpublished opinion by only those 3-judges.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 ….


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Eugene Volokh

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