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Two-Judge Panels in the Appellate Division: What's Up With That?Bruce D. Greenberg

We all generally assume that appellate courts consist of an odd number of judges. That way, there is no risk of an evenly divided court. Thus, the Supreme Court of the United States has nine Justices. The Supreme Court of New Jersey has seven Justices. And panels of the Court of Appeals for the Third Circuit, and other Circuit Courts of Appeals, consist of three judges.

But New Jersey’s Appellate Division is different. Each appeal is assigned to a particular Part of the Appellate Division, which normally consists of four or five judges. From those four or five judges, a subset is selected to hear each appeal. But that subset is presumed to consist of two judges, not three. Rule 2:13-2(b) of the New Jersey Court Rule provides that “Appeals shall be decided by panels of 2 judges designated by the presiding judge of the [P]art except where the presiding judge determines that an appeal should be decided by a panel of 3 judges.”

This two-judge presumption was designed for relatively routine appeals, and is a means of spreading the judges more thinly so as to help more appeals be heard and decided sooner. The Appellate Division is the nation’s busiest undivided intermediate appellate court. Assigning two judges to an appeal instead of three frees that potential third judge to be part of a panel on a different appeal that might otherwise have had to wait longer in the queue. Most appellate decisions are unanimous anyway, so as long as the two assigned judges agree on the result, there is little need for a third judge.

But what if the appeal is not routine? Rule 2:13-2(b) addresses that situation. That Rule authorizes the presiding judge of the Part to assign three judges to an appeal “where the appeal presents a question of public importance, of special difficulty, of precedential value, or for such other special reason as the presiding judge shall determine.” Thus, if the presiding judge assesses an appeal and believes that any of those considerations apply, or finds any other reason to assign three judges instead of two, a panel of three judges will then consider that appeal.

Rule 2:13-2(b) also permits the judges of a two-judge panel to call in a third judge to join them. “The panel of 2 judges to which an appeal is submitted for decision may elect to call a third judge to participate in the decision at any time before making its determination and shall do so if the 2 judges cannot agree as to the determination.”

Thus, there are two different circumstances where a two-judge panel can become a three-judge panel. First, the two judges “may” bring in a third judge, seemingly for any reason and despite the initial decision of the presiding judge to assign only two judges to the appeal. Second, the two judges “shall” enlist a third judge if the two judges disagree about the outcome. That ensures that there is no deadlock.

In either of those circumstances, the Rule requires that an appeal be reargued if it has already been argued before the two judges originally assigned, unless the parties waive reargument. After all, the parties have the right to have the third judge hear their oral arguments, and to have the chance to respond to that third judge’s questions, just as was the case with the two judges originally assigned. In practice, however, the parties will often waive reargument. A reargument delays a decision in the case, and parties often prefer to allow the third judge to read the briefs, listen to the tape of the oral argument before the two judges, and cast the deciding vote without further ado.

The two-judge presumption is an ingenious way of maximizing judicial resources. Parties have the same right to oral argument whether the panel consists of two or three judges. And reversal rates are not very different, though the rate of reversals has historically been slightly higher in three-judge cases, perhaps because of the “special reason[s]” that lead presiding judges to assign three judges in the first place.