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Lawyers will be talking about the recent Massachusetts Appeals Court case, Phannenstiehl v. Phannenstiehl, for years to come. Decided on the question of what happens when trusts and divorce collide, it is rocking the family law and estate planning bar, alike. We have read it, read it and read it again; and like pollen in allergy season, and the winter snows of 2015, the head-scratchers just keep coming.

Over subsequent blog entries, we will address the substance of the case (there’s lots to talk about), but for today, we are most curious about the fact that this controversial decision was decided by one panelist (Justice Berry) of the three who heard the case, while the majority disagreed strongly enough to write (Justice Fecteau) and join in (Justice Kantrowitz) an exceedingly rare family law dissent, and a compelling one at that.

From footnote 2 of the decision, we learn that the panel was “expanded” to include two justices who did not participate in the argument of the case, but jumped in only after the circulation of the opinions. Admittedly unfamiliar with this process, which struck us a bit like expanding the World Series to nine games because the wrong team won, we read the authority cited, and found that it is grounded in Mass. R.A.P. 24 (a); and that:

The procedure that was followed reflects a long-standing practice of the Appeals Court, designed to ensure that published opinions reflect the view of a majority of the Justices. See Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562 , 566 n.7 (1985), indicating that published opinions are considered by the entire court prior to release. In the case of a dissent, if a majority of all the Justices agrees with the majority of the panel, the decision is published as a two to one decision of the original panel. If a majority of all the Justices agrees with the dissent, the panel is enlarged to reflect the view of the majority of the court, generally by adding to the panel the two senior Justices who are part of the full court majority.

Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2, 617 N.E.2d 1023 (1993) (our underlining).

Let’s break it down:

1. In the case of a dissent, if a majority of all the Justices agrees with the majority of the panel, the decision is published as a two to one decision of the original panel.
   
   The opposite occurred, here. An apparent majority of the court agreed with Justice Berry, who was the minority on the panel. 
   
   
2. If a majority of all the Justices agrees with the dissent, the panel is enlarged to reflect the view of the majority of the court, generally by adding to the panel the two senior Justices who are part of the full court majority. 
   
   The implication is that Justice Berry began as the lone dissenter. She then succeeded in gaining a majority, off-panel, consigning the panel majority to the dissent; and, reversing the will of the panel.

Apparently, the events of this case are not unique, but we presume them to be uncommon. One result of this action is that the Appeals Court negated the majority opinion of the justices whom the litigants assumed, incorrectly, would determine their fate.

Is this good policy? As long as Rule 1:28 exists, might it not have been better to simply allow the panel majority to stand, and if the rest of the justices felt it just, limit its impact beyond the parties themselves, with a non-precedent, unpublished opinion?

Were this case a simple one or if it were unassailable in its analysis and result, this curious procedure might matter a whole lot less. But as we will discuss in subsequent entries, this case is anything but. In our view, it is highly problematic.

We hear that a request for further appellate review before the Supreme Judicial Court is likely (if not already pending); and we hope that the SJC takes it. If so, we also hope that the SJC reviews the “longstanding practice” of re-constituting the panel in these circumstances.

Before Yankees fans were cut down to size in 2004, some used to joke that 1975 was the only World Series ever won, 3-4. Maybe the Series actually did revert to nine games that year, and we all just didn’t know it!