Wednesday, November 20, 2019

Pennsylvania Judge Cohn Jubelirer Writes on Appellate Judging, Pennsylvania's Commonwealth Court, and Workers' Compensation Appeals

            Commonwealth Court (Pennsylvania) Judge Renee Cohn Jubelirer, in a new law review article, posits that her court’s codified Internal Operating Procedures, norms, and traditions, all contribute to an effectively-operating court where communication makes for better decision-making and lack of personal tensions among the judges.  The judge’s article is a rare offering: a longstanding sitting judge’s sometimes behind-the-scenes account of how a court operates.  See Renee Cohn Jubelirer, Communicating Disagreement Behind the Bench: The Importance of Rules and Norms of an Appellate Court, 82 Journal of Law & Contemporary Problems 103 (2019). 

            Commonwealth Court is the unique Pennsylvania appeals court that takes appeals from agencies, like the Workers' Compensation Office of Adjudication, and trial courts, outside of criminal cases, when the Commonwealth or some other governmental agency has been a party.

            As a prelude to her must-read discussion about the Commonwealth Court, the judge discusses several aspects of the nature of appellate decision-making. She sets forth, for example, what perhaps we all know intuitively: the idea of having a multiple-member court, on appeal, is basically that two (or more) heads are better than one: “The appellate design assumes that judges working together will communicate and consider different points of view, which increases the probability of reaching a better decision than would a single judge.”  The design is “‘specifically structured to promote a collaborative form of decision making," which presumably improves the quality of accurate decisions, free of bias, and consistent with precedent.  

            And, indeed, as the judge shows us, a significant literature, mainly centered on the federal courts, has addressed the behavior of appellate judges, seeking to ascertain whether this assumption works in the trenches. Judge Richard Posner, for example, has remarked on such issues in his book How Judges Think (2008). Apparently not everyone accepts the common wisdom that multi-member appellate courts will necessarily engage in constructive, collaborative decision-making.    

            Judge Cohn Jubelirer is at odds with such naysayers, and believes that Commonwealth Court, for its part, achieves the related goals of collegiality and collaboration.

           The judge’s review of her own court commences with a brief history of that body, a note on its unique original jurisdiction, and a review of the Internal Operating Procedures and other rules that guide how the panels receive their assignments, vote, and, if necessary, conference on disputed issues. The judge insists that the court’s (1) tradition of placing a premium on collegiality and, famously, (2) policy of having all members vote on every case, leads to a minimum of unnecessary friction, avoids gratuitous (my word) dissents, and helps to ensure consistency of the law. On this latter point, Commonwealth Court has a goal of “polic[ing] itself to maintain consistency of precedent and development of the law….”

            The judge’s discussion of “Judicial Conference,” convened on cases where significant disagreement exists, will perhaps be the most revealing for most readers. When this writer was a clerk at the court, first for Judge Craig and then for Judge Barry, we were not allowed into such sessions:


            A central feature of the deliberative process is our judicial conference. If four judges disagree with the majority opinion, the opinion cannot be filed, and the matter is sent to judicial conference, where all the judges gather and discuss those cases. Judicial conferences are held in person nine times a year during argument sessions…. At conference, the judge who wrote the majority opinion speaks first and explains why the majority opinion is correct on the facts and the law. The other judges can, and do, ask questions about the factual record, the parties' arguments, legal precedent, and reasoning. Then, if there is a dissent, the dissenting author explains why that opinion is correct, and, again, the judges can, and do, ask questions. If there was no dissenting opinion, the objecting judges explain their objections. There is a discussion during which any judge can speak without regard to seniority as many times as needed. At the end of the discussion, the president judge holds a vote, with the newest judge voting first…


           Many perhaps knew of this process. The judge further shares with us, however, that Judicial Conference can become fairly animated:


All the judges prepare for judicial conference, many as if for oral argument. Some judges strategize in their preparation. Prior to conference, a majority writer may think long and hard about whether to withdraw the opinion and rewrite when five or more judges voted in opposition to the majority opinion. The judges [who I interviewed] all felt that the effort costs are worth the benefits of conference…. There is an expectation that disagreements will be honestly aired at a conference that is “always heated and wonderful,” where the judges “really care and battle it out.” ….


            And the Conference has objectively proven successful: “Minds are changed when knowledgeable judges participate in discussion, even though they were not on the panel. Because everyone participates, and has at different times been a majority writer as well as an objector or dissenter, it is not personal…. . Judges listen to their colleagues and may change their minds.”

            In a special insight, Judge Cohn Jubelirer notes, “Conference gives all the judges a voice in the decision, so everyone can be heard and then accept the decision. There is a sense that if some judges did not have input into the precedent, they might try to diminish it by distinguishing it in subsequent opinions.”

            Cohn Jubelirer completes her analysis with a nod towards empiricism. She seeks to determine, for the 304 workers’ compensation appeals adjudicated in the year 2007, whether the make-up of the various panels (on the criteria of political affiliation) yielded any meaningful difference in whether employer or injured worker prevailed. Though acknowledging that the data set she is using is small, she discerns, in the end, no bias. The welcome results of her study, she states, “support that there are no real panel composition effects based on political party.”

            With some luck, that is the result, in material part, of the judges effectively collaborating and seeking, wherever possible, a reasonable and accurate consensus.

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