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Appellate Advocate

August 19, 2013

Tie Goes To The…

by Helen L. Gemmill and Debra P. Fourlas

Most people know the baseball saying that “a tie goes to the runner.”  But who wins if there is a tie in the votes of the judges who are deciding an appellate matter?  This article addresses how a case can have a tie vote on appeal and the effect of a tie on the parties.

How Ties Happen On Appeal

Most decisions on the merits in appeals are heard by a panel of judges.  The panel is usually composed of an odd number of judges.  For example, in the Pennsylvania Commonwealth Court and Pennsylvania Superior Court, cases are usually decided by panels of three judges.  For certain cases that are deemed to have important issues, the Commonwealth Court and Superior Court will have larger panels (known as an en bancpanel), which also have an odd number of judges.   In the Pennsylvania Supreme Court, decisions are made by the entire Court, which is statutorily designated to have seven justices.

After a case is briefed and argued on appeal, the judges on the panel meet to vote on the outcome.  Obviously, if there is an odd number of judges considering the case the vote cannot be tied.  But sometimes, a judge who has heard the case cannot participate in the decision due to a conflict of interest that emerges requiring recusal or an illness or some other reason that prevents participation.  The Pennsylvania Supreme Court recently had only six justices sitting due to the suspension of Justice Joan Orie Melvin (she has now resigned and Judge Correale F. Stevens is joining the Supreme Court bench).  Justice Orie Melvin’s absence resulted in some tie decisions in the Supreme Court.  See, e.g., Alkhafaji v. TIAA-CREF Individual and Institutional Servs., LLC, 38 WAP 2011 & 39 WAP 2011 (consolidated cases – similar issues) (decided June 17, 2013); Commonwealth v. Champney, 574 CAP & 575 CAP (consolidated cases – cross-appeals) (decided April 24, 2013).

Efforts To Break The Tie

If there is a tie vote, in an effort to break the tie, the judges can agree to reconsider the issues and perhaps change their view on the correct outcome of the case.  Or, the judges could agree to narrow the focus of the ruling such that the area where there is a disagreement is not addressed.  The courts’ internal operating provisions can also address how a tie vote is handled.  For example, in the Commonwealth Court, where a tie occurs as a result of a recusal or vacancy after a draft opinion is circulating, the opinion will be filed as circulated notwithstanding the later occurring tie.  See Section 256(b) of the Internal Operating Procedures of the Commonwealth Court, 210 Pa. Code § 67.29(b).

 Who Wins If There Is A Tie

If the tie is not broken, the result from the court below is upheld.  So the appellant loses on appeal and the appellee wins (here is a useful mnemonic device to remember which party is the appellant and which is the appellee:  the appellant  brings the appeal — picture an ant bringing a breadcrumb in its mandibles up the anthill).  In Champney, both parties lost, because they had filed cross-appeals which were consolidated.  The tie vote in that case had the effect of upholding the entirety of the Superior Court decision, so neither party was able to achieve any relief on appeal.

 As a result, when there is a tie in the votes of the appellate judges, the opportunity to correct, clarify or change the decision or the law is lost.  And, unfortunately, the parties will have expended time, effort and fees on appeal for naught.

 © 2013 McNees Wallace & Nurick LLC

Appellate Advocate is presented with the understanding that the publisher does not render specific legal, accounting or other professional service to the reader. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using this material must always research original sources of authority and update this information to ensure accuracy and applicability to specific legal matters. In no event will the authors, the reviewers or the publisher be liable for any damage, whether direct, indirect or consequential, claimed to result from the use of this material.

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