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Three-Judge Panel May Determine Whether Intra-District Conflict Exists, En Banc Review Required

Image of the empty bench of the Tenth District Court of Appeals

Ohio Supreme Court rules in Tenth District Court of Appeals en banc case.

Image of the empty bench of the Tenth District Court of Appeals

Ohio Supreme Court rules in Tenth District Court of Appeals en banc case.

The Supreme Court of Ohio ruled today that when a litigant moves for en banc review of a district court's decision, the three-judge panel that originally decided the case may determine whether an intradistrict conflict − the necessary predicate for en banc review − is present. The justices held that the full court of appeals is also able to make this determination, it is simply not required to do so.

The court’s 4-3 majority opinion was authored by Justice Judith L. French.

An en banc proceeding is one in which all full-time judges of a court who have not recused themselves or otherwise been disqualified participate in the hearing and resolution of a case. The purpose of en banc proceedings is to resolve conflicts of law that arise within a district when different panels of judges in that district consider the same legal issue, but reach different results.

In this case, a three-judge panel of the Tenth District Court of Appeals affirmed a trial court ruling that drug evidence obtained through a police search of defendant Al Forrest’s vehicle was inadmissible at trial because the search violated Forrest’s Fourth Amendment right against unreasonable searches and seizures.

The state filed a motion in the court of appeals alleging that the panel’s decision in Forrest’s case was in conflict with prior decisions by other Tenth District panels in similar search and seizure cases, and requesting  en banc review of the Forrest panel’s decision by all eight judges of the court.  The state  also moved to have all eight judges consider its claim of an intradistrict conflict and rule on its application for en banc review.

The three-judge panel that had heard the original appeal denied the motion for participation of all eight judges and reviewed the application for en banc consideration. The panel found that its initial decision did not conflict with prior Tenth District cases and that en banc consideration was therefore unwarranted under App.R. 26(A)(2). The Tenth District subsequently certified that its ruling that a three-judge panel has authority to determine whether an intradistrict conflict exists was in conflict with decisions of the Eighth and Ninth Districts, which held  that the question of an intradistrict conflict must be decided by a majority vote of the entire court. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

Writing for the majority in today’s decision, Justice French noted that the parties agreed that only a majority of the en banc court has the power to grant an application for en banc review, but disagreed about whether the en banc court must also review all applications and make the predicate determination that an intradistrict conflict exists.

Justice French wrote: “Forrest argues that the rule is silent as to who must make the initial conflict determination.  Therefore, he concludes, a panel of judges may perform that task.  The state, on the other hand, maintains that the en banc court must review all applications and determine, by  majority vote, whether a conflict exists. The state argues that the plain language of the rule, as well as the policies behind en banc review, demand this interpretation.” 

“Based on our reading of the rule, we agree with Forrest’s interpretation. The rule does not explicitly state who must review an application for en banc consideration or determine whether an intradistrict conflict exists. ... The pertinent language simply provides, ‘Upon a determination that two or more decisions of the court on which they sit are in conflict, a majority of the en banc court may order that an appeal or other proceeding be considered en banc.’ ... Here, the rule states only that ‘a determination’ must be made; it does not state who must make the determination.”

“Because the rule does not assign a subject to make the ‘determination,’ we cannot agree with the state that the en banc court must handle the initial conflict determination. The rule expressly gives just one task to the en banc court, i.e., to ‘order’ the en banc proceeding, and the rule assumes that the conflict ‘determination’ has already taken place at that point. We therefore conclude that App.R. 26(A)(2) is silent as to who must participate in the initial review of an application for en banc consideration and the assessment whether an intradistrict conflict exists.  It permits, but does not require, the en banc court to undertake these tasks.”

“Given the rule’s silence as to who reviews applications and determines potential conflicts, a court should be free to undertake these tasks by reasonable means that are not otherwise contrary to the Rules of Appellate Procedure. ... Here, the panel employed a procedure by which it, as the panel that originally decided the case, reviewed the application to ascertain whether there was arguable merit to the state’s contention that the panel’s decision resulted in an intradistrict conflict.  ... The panel stated that this procedure ‘is more efficient’ than submitting the application to the full court, ‘especially in the vast majority of cases where no arguable merit is present,’ as well as in ‘cases where one of the parties simply wants to delay.’  ...  This procedure is not an unreasonable exercise of the court’s discretion under App.R. 26(A)(2).”

“(A)lthough App.R. 26(A)(2) permits panel review of applications for en banc consideration, it does not demand that approach.  Under the rule, courts may still choose to send applications directly to the full court for review and assessment of whether an intradistrict conflict exists, bypassing the panel altogether. The Eighth and Ninth District Courts of Appeals chose such an approach in Kelley v. Ferraro (2010) and State v. Morris (2010), the cases that formed the basis for the certified conflict here. ... This practice of immediate full-court participation is permissible under the rule and under our holding today.  It is simply not required.”

Justice French’s opinion was joined by Justices Paul E. Pfeifer, Judith Ann Lanzinger and William M O’Neill.

Justice Sharon L. Kennedy partially concurred and partially dissented from the majority opinion.  While agreeing that App.R.26(A)(2)(a) requires an initial determination as to whether an intradistrict conflict exists, Justice Kennedy said in her view the rule requires that determination to be made by the full court, not by a three-judge panel.

She wrote: “The word ‘panel’ never appears in App.R. 26(A)(2)(a).  The only subject in the first sentence of App.R. 26(A)(2)(a) is ‘majority of the en banc court.’  Therefore, I believe that the more logical and reasonable interpretation of App.R. 26(A)(2)(a) is that the en banc court makes the initial determination whether an intradistrict conflict exists.  …  This court has recognized that the primary purpose of en banc review is to allow a court of appeals to use a ‘majority of its judges … to control and thereby  …  secure uniformity and continuity in its decisions [and to use] … panels of three judges [to] hear and decide the vast majority of cases as to which no division exists within the court. ’ … Panel-only review deprives the en banc court of the opportunity to exercise this institution-wide control.” 

Chief Justice Maureen O’Connor joined Justice Kennedy’s opinion, and also joined a separate dissent entered by Justice Terrence O’Donnell in which he noted that the provision of App.R.26 addressing en banc proceedings refers only to “a majority of the en banc court,” and wrote that in his view allowing the same three-judge panel that decided a case to determine whether its own decision conflicts with prior rulings of the court is contrary to the purpose of the rule.

Justice O’Donnell wrote:  “The rule’s statement that ‘other procedures’ regarding ‘en banc proceedings may be prescribed by local rule or ordered by the court,’ …  does not permit a court to promulgate a local rule that conflicts with App.R. 26, which, after all, has been promulgated to achieve statewide uniformity and clarity and also to prevent idiosyncratic differences from permeating the appellate process. Accordingly, I dissent.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2012-0415 and 2012-0416. State v. Forrest, Slip Opinion No. 2013-Ohio-2409.
Franklin App. No. 11AP-291, 2012-Ohio-280 and 2012-Ohio-938.  Judgment affirmed.
Pfeifer, Lanzinger, French, and O’Neill, JJ., concur.
O’Connor, C.J., and Kennedy, J., concur in part and dissent in part.
O’Donnell, J., dissents.

Video clip View oral argument video of this case.

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