Appeals Court Takes New En Banc Pilot Program for a Test Flight

By Nicholas D. Stellakis

In late 2022, the Appeals Court instituted a pilot program for en banc review. This pilot program is the latest manifestation of the Court’s longstanding practice of “second panel” review, where any published decision is first circulated in draft form to all of the Court’s justices to ensure that it reflects the views of the majority of all justices on the Court and not just those on the panel that heard argument. Under the en banc pilot program, any justice may call for a vote on en banc review. En banc review is granted only if: (1) “the draft panel decision would conflict with a decision of the U.S. Supreme Court, the Supreme Judicial Court, or the Appeals Court and en banc review is necessary to maintain the uniformity of the court’s decisions” or (2) “the proceeding involves one or more questions of ‘exceptional importance.’”

If a majority of the court votes in favor of en banc review, the parties are notified of the en banc hearing date, the amount of time allotted for argument and whether supplemental briefing is needed. The Court may also ask for amicus briefs. En banc oral argument is by videoconference, the only practical way for all 25 justices to participate.

Parties may not request en banc review, nor will the court entertain any such request. Unlike the federal system, under the Appeals Court’s program, there is no panel decision from which to seek en banc review.

The pilot program temporarily suspends the Court’s protocol announced in Sciaba Const. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993). Under Sciaba, when a panel is split and the majority of all justices agree with the panel’s dissent, that dissent becomes the published majority opinion. Two off-panel justices supporting the dissent are added to the masthead, resulting in a five-to-three decision in favor of the would-be dissent.

Sciaba has raised questions over the years: Is it fair to the parties if justices, who did not participate in argument, change the result supported by the justices who did hear argument? Is it fair to the attorneys who directed their oral advocacy to the panel and might have augmented that advocacy to address questions that perhaps were not put to them? And what to do if the full court disagrees, in whole or in part, with a unanimous panel?

The en banc pilot program offers a potential solution. Rather than adding panel members behind the scenes as in Sciaba, an en banc hearing affords the parties the opportunity to argue their case before the full Court who will be deciding the matter. In this way, advocates can address, directly, the questions and concerns of the justices who were not part of the original three-member panel.

Chief Justice Green has indicated that the pilot program will remain in place for the immediate future as the Court continues to collect data. He has noted that the decision-making process is very different under the pilot program as compared to what occurred under Sciaba, owing to a very different group dynamic when all justices participate in the hearing and the post-hearing consultations. But there are costs in time and court resources, and the drafting process is decidedly different when all 25 justices participate.

To date, the only case that has been reviewed under the pilot program is Ferreira v. Charland, 103 Mass. App. Ct. 194 (2023). Attorneys in a case selected for en banc review would be wise to watch the argument in Ferreira, linked on the Court’s web site. The exceptionally smooth argument saw very well-prepared justices engage in an active, but orderly, questioning of each side, without cross-talk or interruption. Counsel should be thoroughly prepared as always, but with particular attention given to any issue the court has signaled is important. Notably, the en banc notice in Ferreira was accompanied by a call for amicus briefing. If that pattern holds, counsel will know the main issues of interest to the Court and will be ready to address them.

Whether the future entails more en banc hearings, a revised Sciaba protocol, or something else entirely remains to be seen. Attorneys should understand that the en banc pilot program is an important evolution in how the Appeals Court adheres to its tradition of ensuring that all published decisions reflect the views of the entire court, not just the panel that heard argument. This custom is part of the fabric that makes the Appeals Court the unique Massachusetts institution that it is. Practitioners would do well to keep that custom in mind not just when arguing to the en banc court but in every panel argument. The eyes of the entire court are on every published decision. Prepare your case accordingly.

Nicholas Stellakis is an attorney with Hunton Andrews Kurth, where he specializes in appellate law and business litigation. He served as a law clerk at the Appeals Court in 2001-2002 and for the Supreme Judicial Court in 2002-2003.