Collegiality and Dissent in Polish Administrative Courts - Exploring Judicial Interactions

• Author: Maciej Wojciechowski
• Position: University of Gdańsk
• Pages: 49-66

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

COLLEGIALITY AND DISSENT IN POLISH ADMINISTRATIVE

COURTS: EXPLORING JUDICIAL INTERACTIONS / Maciej

Wojciechowski

Dr hab. Maciej Wojciechowski

University of Gdańsk

Faculty of Law and Administration

ul. Jana Bażyńskiego 6

80-309 Gdańsk; Poland.

maciej.wojciechowski@ug.edu.pl

ORCID: 0000-0002-3079-4150

This work was supported by the Polish

National Centre of Science. Grant

number 2014/13/D/HS5/03399.

Acknowledgments:

The descriptive statistics were written

and the results of the questionnaire

were developed by Maciej Brosz from

the Institute of Philosophy, Sociology,

and Journalism of the University of

Gdańsk. Many thanks to Kamila

Pałkowska for the efficient and

accurate transcription of the

interviews. Many thanks to Joanna

Siudak-Campfield for her devotion to

the improvement of the English style of

the script. We would like to thank

Editage (www.editage.com) for

English language editing.

Abstract:

This article addresses a gap in existing research by

focusing on the often-neglected realm of judicial interactions and

internal dynamics within specific courts concerning the

phenomenon of votum separatum. We examine the forms and

practices of collegiality within Polish administrative courts and

their influence on judges' decisions to file dissenting opinions.

Additionally, we investigate the reactions of fellow judges when a

dissent is announced.

Our qualitative research methodology relies on in-depth

interviews to prevent the imposition of predefined categories.

Participants were encouraged to recount their experiences

related to composing or participating in decisions involving

dissenting opinions. This approach led to the emergence of

categories related to collegiality, its functions, and inherent

tensions.

Our findings reveal that collegiality manifests in various forms

beyond panel deliberations. Notably, our research uncovers the

existence of departmental meetings in provincial administrative

courts where issues addressed in dissenting opinions are

discussed. Furthermore, judges' perspectives indicate that the

most common scenario leading to dissenting opinions arises

when judges from different panels reach opposing decisions.

This dilemma prompts judges to choose between adhering to the

initial panel's decision or voting for a divergent position proposed

by the second panel.

Finally, our observations within courtrooms highlight that the

ideal of the dispassionate judge does not exclude subtle

expressions of surprise or disappointment. These findings enrich

our understanding of judicial interactions, shedding light on the

complexities of collegiality and dissent within the context of

Polish adm inistrative c ourts.

Submitted:

3 October 2023

Accepted:

8 February 2024

Published:

07 July 2024

Key words: Dissent; Dissenting Opinion; Collegiality; Judges;

Judicial Independence; Law and Emotions

Suggested citation:

Wojciechowski, M. (2024). Collegiality and Dissent in Polish

Administrative Courts: Exploring Judicial Interactions. Bratislava Law

Review, 8(1), 49-66. https://doi.org/10.46282/blr.2024.8.1.741

1. INTRODUCTION

Dissent is omnipresent in society and is a fundamental component of human

interaction (Kissent, 2011 p. 17). Indeed, the history of the world is a collective story of

dissent against the existing social order (slave uprisings and peasant revolts) or legal

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Vol. 8 No 1 (2024)

authority (e.g., national uprisings). Individual dissent may take tragic forms, such as the

self-immolation of Ryszard Siwiec in 1968 in protest against the intervention of the

Warsaw Treaty’s armies in Czechoslovakia, or it may occur in form of organisational

settings (Kissent, 2011, p. 22), as in 1976, when the Polish Parliament passed the

amendment of the Constitution of 1952 on the leading role of the Polish United

Communist Party and only one member of Parliament (Stanisław Stomma) abstained

from the vote. Judicial dissent is an example of an objection taken in organisational

settings allowed by legal rules against decisions made by the collegial body by one of its

members.

Judicial dissent constitutes a theoretical challenge for legal scholars based on

the assumption that the law is predictable, determined, and objective. It is also a

challenge for the lawmaker to deal with undermining official authority (Mistry, 2023, p. 6).

There are legal systems in which dissenting opinions are not allowed (e.g., France) or

concealed (e.g., Spain) (Nadelmann, 1959, p. 420). The prohibition of the judges’ right to

dissent is associated with civil law countries (Ginsburg, 2010, p. 2). Judicial dissents are

allowed in countries like Denmark, Germany, Estonia, and Poland, to name only a few

(Laffranque, 2003, p. 165). Generally, judicial dissent is a feature of the common law

culture, with its British origin of opinions separately announced by each judge (Ginsburg,

1990, p. 133; Henderson, 2007, p. 294). This diversity is reflected by discussions of the

legitimacy of judges’ rights to dissent (Lynch, 2016). On the one hand, dissenting opinions

impair the credibility of the court (Donald, 2019, p. 323) and its judgments, endanger its

authority and reduce its persuasiveness (Laffranque, 2003, p. 170). On the other hand,

dissent guarantees that the case is fully considered (Fuld, 1962, p. 927). It also protects

judicial independence and helps point out errors made by the court (Ginsburg, 1990, p. 4).

Dissenting opinions can help disclose inconsistencies in the legal system (Hettinger,

Lindquist and Martinek, 2003, p. 217) and thus “make the law better” (Henderson, 2007,

p. 217).

Judicial dissent is a legal phenomenon also of interest to political science. These

studies primarily focus on explaining judges’ decisions to dissent, assuming that legal

doctrines do not fully explain judicial votes (Brace and Hall, 1993, p. 914). Different factors

have been hypothesised to explain judges' decision to dissent: political and ideological

preferences (attitudinal model) and structural factors such as the presence of an

intermediate appellate court, opinion assignment, workload, or the number of judges

sitting on the panel (institutional model). The attitudinal model was identified with

reference to the U.S. Supreme Court (Segal and Spaeth, 2002) and U.S. Courts of Appeal,

where the cautious conclusions of one study stated that female judges were more likely

to support victims of discrimination (Songer, Davis a nd Haire, 1994, p. 435). For some

time, integrated approaches have been tested, such as the neo-institutional perspective,

which assumes that judges’ decisions are the result of the interaction of preferences,

legal rules, and structures (Brace and Hall, 1993, p. 915). As an integral approach, we

might consider the “collegial political model of dissent” that views dissent as a function

of political, institutional, and legal (in the form of ambiguity and complexity of issues)

factors, but a lso of the style of leadership of chief justices (Songer, 2011, p. 394). This

model was tested in relation to cases decided by the Supreme Court of Canada, showing

that factors such as political and legal salience, both reversal and complexity of the issue,

and panel size (i.e., dissent is more likely to appear in larger panels) had an impact on the

likelihood of dissen t (Songer 2011, p. 404). Anot her approach that could be la belled

integral is based on the assumption that judges’ decision to dissent mirrors their policy

goals within an institutional environment and within legal constraints in the form of legal

doctrine.