March 16, 2005
Delaware Supreme Court ... En Banc
Posted by Gordon Smith

I just learned somthing today that will be of interest to people who watch the Delaware courts. Norman Veasey, former Chief Justice of the Delaware Supreme Court, published an article in The Business Lawyer in August 2004 that stated, "The Supreme Court recently changed its Internal Operating Procedures so that we tend to sit en banc (rather than in panels) in cases that are important enough to require oral argument. The Supreme Court should speak with one voice, if possible, though recusals and the current transition to a new Chief Justice will require more panel cases, at least temporarily." (emphasis added)

The Delaware Supreme Court has five justices. Panels are comprised of three justices. Traditionally, the Court would sit en banc (all five justices) in corporate law cases only when the appointed panel was divided. Of course, sitting en banc does not guarantee that the "Supreme Court [will] speak with one voice." In the well-known case of Omnicare, Inc. v. NCS Healthcare, Inc., for example, the Court sat en banc but delievered a split (3-2) decision.

I wonder what prompted the change? Was it merely the felt need to speak more authoritatively in light of recent attacks on Delaware's role in the corporate governance system? Or was there a panel decision that  embarrassed the non-panel justices? (Seems unlikely. If that were the impetus for the change, it would not result in more "one voice" decisions.) Anyone with the inside scoop, I would be interested to know.

Finally, we do not have the Delaware Supreme Court's Internal Operating Procedures, but could they really say what Veasey claimed? Notice that he does not describe a flat rule under which all cases scheduled for oral argument are cases in which the Court sits en banc. Is this the sort of rule that could be subject to manipulation by some future Chief Justice?

UPDATE: With the help of Ed Rock, I was able to contact Chief Justice Veasey. He sent this response on the impetus for the new en banc rule at the Delaware Supreme Court ...

The change was prompted in part by cost efficiency for the court and litigants and by the need to speak with one voice or to air dissents, as necessary, from the outset.

The Internal Operating Procedures (IOPs) have included the criteria for oral argument for a long time.  IOP V provides that oral argument is desirable when the case presents a substantial or novel issue, when the case is likely to be important as precedent, the justices have questions for counsel, events (including legislative action) after the filing of the last brief may bear on the case, or the appeal implicates an important public policy issue.  It seemed logical that if those criteria were met, qualifying the case for oral argument, the appeal warranted en banc hearing from the outset as well.

This is particularly important in corporate cases.  The Delaware Supreme Court decides most (perhaps more than 70%) of its many (usually more than 700 per year) appeals in panels without oral argument.  Only between thirty and fifty of the annual appeals are corporate.  So the court decided it should attempt to have at least all those cases heard en bancfrom the outset.

The system of deciding most cases on the briefs may be seen as functionally equivalent to an intermediate appellate court, at least in some respects.  Delaware does not have an intermediate appellate court, and it is unlikely to have one in the near term.  The state and the court system are too small to justify the cost of the additional court.

So, if the case warrants oral argument, in my opinion that case should be en banc from the outset or on rehearing at a party's request if the court may have made a mistake.  Having the entire court hear a case when it is important enough to warrant oral argument serves the goals of efficiency and speaking with one voice, in my view.  The exceptions should be limited to scheduling problems or exigencies, disqualifications, personnel transitions, and the like.

Applying this rule might result in approximately 200 oral arguments per year, which equates to about four per week.  If 70% of those oral arguments are en banc, that averages out to about three en banc hearings per week, which is quite a few.  But I believe the court should consider that a goal, which is why I promoted the IOP amendments.

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