2022 Ohio 509
Ohio2022Background
- Business dispute between partners Ronald Jezerinac and Mo Dioun over Barley’s Brewing Company; trial court ordered sale to Jezerinac.
- Tenth District panel (Brunner, Horton, Klatt) reversed the trial court in Jezerinac I; Horton announced resignation effective the day the decision issued.
- Jezerinac timely filed an application for reconsideration; Governor appointed Frederick Nelson to fill Horton’s seat before reconsideration was decided.
- Dioun argued the successor judge (Nelson) could not participate because he was not one of the three judges who issued the original decision; Tenth District disagreed and allowed Nelson to sit.
- With Nelson participating, the panel granted reconsideration, vacated Jezerinac I, and affirmed the trial court; Dioun sought further review, raising the replacement-judge issue to this Court.
- Ohio Supreme Court held a panel’s identity persists despite personnel changes and that replacing a departed judge to decide reconsideration is lawful and consistent with the Constitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether App.R. 26(A)(1)(c) requires the exact three judges who issued the original decision to decide reconsideration | Jezerinac: successor may sit; panel identity persists | Dioun: only the original three judges may decide; successor creates a new panel and cannot participate | Held: Replacement judge may participate; the panel remains “the panel that issued the original decision.” |
| Whether the constitutional requirement that three judges “participate in the hearing and disposition” is satisfied without replacement when a judge leaves after the original decision | Jezerinac: reconsideration is part of disposition, so three judges must participate and a successor can fill vacancy | Dioun: original three satisfied the constitutional requirement; no replacement needed | Held: The constitutional requirement extends to reconsideration; if a judge is unavailable, a successor may be appointed so three judges participate. |
| Whether Article IV, §3(B)(3) (majority of judges hearing the cause) forbids successor participation | Jezerinac: “hearing the cause” is not limited to oral argument; majority requirement applies to those who consider the motion | Dioun: majority must be among judges who originally heard argument; successor participation violates the provision | Held: “Hearing the cause” is not limited to oral argument; majority requirement does not bar successor participation; a majority of judges who consider the reconsideration must decide. |
Key Cases Cited
- McFadden v. Cleveland State Univ., 896 N.E.2d 672 (Ohio 2008) (constitutional requirement that appellate cases be heard by at least three judges)
- Holland v. State, 271 N.E.2d 819 (Ohio 1971) (judicial authority rests in the office, not the individual judge)
- Cincinnati v. Alcorn, 171 N.E. 330 (Ohio 1930) (court identity persists despite personnel changes)
- State ex rel. Everhart v. McIntosh, 874 N.E.2d 516 (Ohio 2007) (successor judge may be substituted in actions against departing judges)
- Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009) (replacement of a deceased judge on a three-judge panel)
- Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018) (replacement of a retired judge on a panel under circuit rules)
- Hitchcock v. Wainwright, 777 F.2d 628 (11th Cir. 1985) (panel composition adjusted when a judge recuses or is unavailable)