§ 63.4. Opinions.
A. Circulation Schedule; Voting; Hold; Reassignment.
1. Preparation of Opinions. Preparation of opinions and responses to circulating opinions shall be given the highest priority.
a. Majority. The assigned Justice shall, absent extraordinary circumstances, circulate a proposed majority opinion to all members of the Court within ninety (90) days of the assignment in single-issue cases and serial capital PCRA appeals, within one hundred and twenty (120) days in multiple-issue cases, within one hundred and fifty (150) days in capital direct appeals, within one hundred and eighty (180) days in first capital PCRA appeals, or within forty-five (45) days of the assignment of a Childrens Fast Track appeal. The Court should make every effort to decide cases by clear majority disposition.
b. Concurrences and Dissents. Justices who are aligned as to the result should collaborate as much as possible to achieve a unified position in responsive opinions. Concurrences and dissents shall be circulated to all members of the Court within forty (40) days of the date of the first scheduled vote on the proposed majority opinion in single-issue cases and serial capital PCRA appeals, within sixty (60) days in multiple-issue cases, within seventy-five (75) days in capital direct appeals, and within ninety (90) days in first capital PCRA cases. Matters may also be held for additional review by a Justice during these time periods. In Childrens Fast Track appeals, concurrences and dissents shall be circulated to all members of the Court within twenty (20) days of the date of the first scheduled vote on the proposed majority opinion.
Due dates for responsive opinions are calculated from the date of the first scheduled vote on the original proposed majority opinion, regardless of whether the case is moved to a subsequent vote list by the circulation of a responsive opinion. Generally, the first scheduled vote date will remain the threshold date in the calculation, unless the proposed majority opinion is withdrawn or the substantive analysis and/or resolution is substantially altered via a revised opinion. In such instances, the time period is calculated from the date of the first scheduled vote on the revised majority opinion. A majority authors mere defense of an already-existing analysis through revisions in the nature of rejoinder does not alter the time period for response.
2. Monthly Vote Lists. Circulating proposed opinions are voted upon each month according to the schedule provided by the Chief Justice for use in that calendar year. Each monthly vote list shall be circulated by the Chief Justice the first Monday of the month, or, if that date is a holiday, on the first Tuesday of the month; the dates to circulate the vote lists may be adjusted. The cases listed shall include all proposed majority opinions, per curiam opinions and dispositive per curiam orders in appeal cases submitted for the Courts consideration as of ten (10) days prior to the circulation of the vote list. Responsive opinions to majority opinions on a vote list shall be circulated by 5:00 p.m. on the Friday before the vote list is circulated; responsive opinions circulated after that time shall move the case to the next vote list. Responsive opinions to majority opinions not already on a vote list shall be placed on the next available vote list following their circulation to the Court.
3. Entry of Votes. Votes on listed cases shall be entered according to the schedule provided by the Chief Justice. Generally speaking, votes are due on the fifth business day following circulation of the vote list. However, that time frame is adjusted to account for holidays, court sessions and other anticipated conflicts. The vote schedule for the calendar year distributed to the Court by the Chief Justice specifies the vote day for each month. Within two (2) business days following entry of the votes, the Chief Justice will circulate to all Justices a disposition, listing the votes for each case. Within two (2) days after circulation of the disposition, the Chief Justice must be advised of any correction. On the next business day (the fifth business day following the entry of votes) the Chief Justice shall circulate to the Court and to the Prothonotary a confidential list of all cases ready to be filed together with the votes of the Justices. No case will appear on the confidential list unless all votes are recorded. The Prothonotary will docket opinions consistent with the information received.
a. Permissible votes include join majority opinion; join majority opinion/author concurring opinion; author revised majority opinion; author concurring opinion; author revised concurring opinion; hold for concurring opinion; join concurring opinion; author dissenting opinion; author revised dissenting opinion; hold for dissenting opinion; join dissenting opinion; author concurring/dissenting opinion; hold for concurring/dissenting opinion; join concurring/dissenting opinion; hold for further review; do not participate; or other. A Justice may also concur in the result or dissent without opinion, but these options should not be employed if the vote is dispositive.
b. Telephone Conferences and Administrative Agenda. After receipt of the monthly vote list, any Justice may request that any case be held for telephone conference by making such request in writing or electronically to the Chief Justice with notice to all other Justices. The list will also indicate a date certain on which a telephone conference will be held for any cases so designated. At the request of any Justice, and upon approval by the Chief Justice, cases may be held for discussion to take place at the next scheduled administrative agenda.
c. Holds. Upon entry of any hold vote, the period required for response shall correspond to the time periods allowed for circulation of concurrences and dissents. A Justice may request additional leeway upon circulation of an internal letter explaining the reasons for the delay and estimating the time for completion of the review or responsive opinion. If the review or responsive opinion is not completed by the designated time, additional status information shall be provided every twenty (20) days thereafter, except when the matter has been placed on hold for another pending case; in that event, the matter shall be resolved upon the resolution of the pending case. Once a matter has been voted upon and the time period initially allowed for circulation of concurrences and dissents has passed, holds upon subsequent listings are strongly discouraged. Held opinions are to be resolved expeditiously. In a Childrens Fast Track appeal, in no event shall circulation of a responsive opinion occur beyond thirty (30) days from the date the vote was initially due.
Upon appropriate notice to a holding Justice and an opportunity to respond, the Chief Justice in his or her discretion may direct the filing of an opinion with a holding Justice noted as not participating in the decision of the matter, dissenting without opinion, concurring in the result, or with an opinion to follow, as the case may be. In Childrens Fast Track appeals, if, within thirty (30) days of the date votes are due on majority opinions no dissent or concurrence has been placed in circulation, the case will be filed, and the dissenting or concurring Justice will be noted as not having participated in the decision of the matter.
d. Reassignment. When a concurrence or dissent garners a majority of votes, the author of the proposed majority opinion may withdraw the opinion to revise to accommodate the new majority, or the case shall be reassigned to the author of the concurrence or dissent. Upon reassignment, and absent extraordinary circumstances, the new majority opinion shall be circulated within thirty (30) days in single-issue cases and serial capital PCRA appeals, sixty (60) days in multiple-issue cases, seventy-five (75) days in capital direct appeals, ninety (90) days in first capital PCRA appeals, and, in Childrens Fast Track appeals, within fifteen (15) days.
Notwithstanding any contrary procedures set forth above, Justices shall give priority in both circulation of and voting on proposed opinions in Childrens Fast Track appeals.
B. Labeling of Opinions.
1. Majority Opinion. An opinion will be labeled Opinion when a majority joins the rationale and result of the opinion. Majority opinions shall list the composition of the Court hearing the appeal, and shall indicate when a Justice did not participate in the consideration or decision of the matter. Proposed majority opinions that involve multiple, complex issues which the authoring Justice believes may garner disparate votes should be divided into sections. If there is a split in votes in an opinion that has been divided into sections, the authoring Justice will be responsible for preparing a short introductory statement summarizing the resulting votes.
2. Concurrences and Dissents. An opinion is a concurring opinion when the Justice agrees with the result of the proposed majority opinion. A Justice who agrees with the result of the proposed majority opinion, but does not agree with the rationale supporting the proposed majority opinion, in whole or in part, may write a separate concurring opinion. An opinion is a dissenting opinion when the Justice disagrees with the result of the proposed majority opinion.
As a general rule, an opinion is a concurring and dissenting opinion when there is more than one issue and the Justice agrees with the majoritys disposition of some but not all issues, and is in disagreement with the mandate. There may be occasions, however, in which a Justice may agree with the outcome but may disagree with a principle enunciated by a majority of the Court which will govern the outcome of other cases. In such instances, Justices are not strictly bound to concur outright; rather, they retain the discretion to label responses as concurring and dissenting.
Alternatively, a Justice may choose to concur in the result or dissent without writing a separate opinion, although both options are strongly disfavored if the vote is dispositive.
3. Other designations. An opinion shall be designated as the Opinion Announcing the Judgment of the Court when it reflects only the mandate, and not the rationale, of a majority of Justices. When the votes are equally divided, any resulting opinions shall be designated as the Opinion in Support of Affirmance or Opinion in Support of Reversal, as the case may be. In all such opinions, the name of any Justice not participating in the consideration or decision of the matter shall be noted.
C. Reconsideration Applications.
1. Assignment. The Prothonotary shall assign applications for reconsideration to the author of the majority opinion or the opinion announcing the judgment of the Court. If the appeal was resolved by an equally divided Court, the petition shall be assigned to the author of the opinion in support of affirmance.
2. Circulation and Disposition. The assigned Justice shall circulate to all members of the Court a recommended disposition within fourteen (14) days of the assignment or within seven (7) days of the assignment in Childrens Fast Track appeals. A Justice who disagrees with the recommended disposition shall circulate a counter-recommendation within fourteen (14) days of the original recommendation or seven (7) days in Childrens Fast Track appeals. A vote of the majority is required to grant reconsideration. In any case in which reconsideration has been denied, a Justice may request that the order record that he or she voted to grant reconsideration. All orders shall indicate if a Justice did not participate in the consideration or decision of the matter.
The provisions of this § 63.4 amended through September 27, 1995; amended April 29, 2005, 35 Pa.B. 2854; amended May 18, 2011, 41 Pa.B. 2837; amended January 9, 2013, effective in 30 days, 43 Pa.B. 514; amended October 4, 2018, effective immediately, 48 Pa.B. 6652. Immediately preceding text appears at serial pages (365784) to (365788).
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