New York City Bar Supports En Banc Review
in the New York Appellate Division

In a report by its Committee on State Courts of Superior Jurisdiction, the New York City Bar Association announced support for en banc rehearings in the New York Appellate Division. The report, titled “En Banc Review in New York Courts,” asserts that en banc review would help resolve intra-department conflicts, thereby promoting clarity and the resolution of disputes.

In general, if a panel of an intermediate appellate court finds that a prior panel of that court has erroneously decided an issue, the panel has no power to overrule the prior panel. A survey conducted by the Committee on State Courts of Superior Jurisdiction found that the federal court system, along with the District of Columbia and 23 states all provide for en banc review by their intermediate appellate courts.

The report cites burgeoning caseloads among the courts as one of the reasons why en banc review would be useful in eliminating intra-department conflicts. En banc review is a tool that would enable courts “to produce a consistently superior quality of judicial work.”

The Committee does not encourage the Appellate Divisions to hold their initial hearing of an appeal en banc, stating that such practice is likely to cause disruption to the court’s workload. The report, instead, calls for an amendment to Article 6, Section 4.b. of the state constitution in order to modify the strict five-justice rule. With the addition of the underlined phrase below, the Committee believes the five-justice rule, which prohibits no more than five justices to sit in any case heard by the Appellate Division, can be modified to provide for en banc review of an initial decision by an Appellate Division panel.

b.  The appellate divisions of the supreme court are continued, and shall consist of seven justices of the supreme court in each of the first and second departments, and five justices in each of the other departments. In each appellate division, four justices shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case, except when a majority of the justices of any department votes to rehear en banc a case originally heard by that department. If a case is reheard en banc, the concurrence of a majority of the department’s justices eligible to sit on the case shall be necessary to a decision.

The Committee further recommends that each Appellate Division be granted the discretion to implement its own procedures for en banc rehearings.

About the Association
The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.