THE STATE OF OHIO, APPELLANT, v. FORREST, APPELLEE.
Nos. 2012-0415 and 2012-0416
Supreme Court of Ohio
Submitted February 5, 2013—Decided June 12, 2013
136 Ohio St.3d 134, 2013-Ohio-2409
{11} This case presents the question whether a three-judge panel of appellate judges—instead of the full court—may review a party‘s application for en banc consideration in order to determine whether an intradistrict conflict exists. We hold that it may.
Facts and Procedural History
{12} On May 16, 2009, appellee, Al E. Forrest, was sitting in a parked vehicle on Omar Drive in Columbus. A Columbus police officer approached the vehicle, observed Forrest‘s behavior, and ordered Forrest to exit the car. Forrest ignored the officer, so the officer opened the door and pulled Forrest out. As he did so, he saw a clear plastic baggie of heroin on the seat next to Forrest. He placed Forrest under arrest, searched the vehicle, and found cocaine.
{13} Following his indictment on drug-related charges, Forrest filed a motion to suppress the evidence obtained in the search. The trial court granted the motion, finding that the search violated the Fourth Amendment. A three-judge panel of the Tenth District Court of Appeals affirmed the judgment. State v. Forrest, 10th Dist. No. 11AP-291, 2011-Ohio-6234, 2011 WL 6037409, 120.
{14} The state then filed simultaneous applications for reconsideration and en banc consideration. The state also moved to have all eight judges of the Tenth District rule on the state‘s application for en banc consideration. The three-judge panel that heard the original appeal denied the motion for participation of all eight judges and reviewed the application for en banc consideration. State v. Forrest, 10th Dist. No. 11AP-291, 2012-Ohio-280, 2012 WL 246471, 11, 16. The
{15} We accepted the state‘s discretionary appeal on its fifth proposition of law, regarding whether it was proper for only the panel—and not the en banc court—to review and deny the application for en banc consideration. State v. Forrest, 131 Ohio St.3d 1553, 2012-Ohio-2263, 967 N.E.2d 764. We also determined that a conflict exists between Forrest and two other cases, Kelley v. Ferraro, 8th Dist. No. 92446, 2010-Ohio-4179, 2010 WL 3467451, and State v. Morris, 9th Dist. No. 09CA0022-M, 2010-Ohio-5973, 2010 WL 4968633. State v. Forrest, 131 Ohio St.3d 1551, 2012-Ohio-2263, 967 N.E.2d 763. The certified-conflict matter and the state‘s discretionary appeal were consolidated for review. Id.
Question Presented
{16} The certified-conflict question states as follows: “Whether the entire en banc court as defined in
Analysis
{17} 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.
{18}
(2) En banc consideration
(a) 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. * * * Consideration en banc is not favored and will not be ordered unless necessary to secure or maintain uniformity of decisions within the district on an issue that is dispositive in the case in which the application is filed.
(b) The en banc court may order en banc consideration sua sponte. A party may also make an application for en banc consideration. An application for en banc consideration must explain how the panel‘s decision conflicts with a prior panel‘s decision on a dispositive issue and why consideration by the court en banc is necessary to secure and maintain uniformity of the court‘s decisions.
Under the rule, applications for en banc consideration progress through the following three-step process: (1) a party files the application, (2) a determination is made regarding whether an intradistrict conflict exists, and (3) if a conflict is found, a majority of the full court may order en banc consideration of the case.
{19} The parties do not dispute that only the en banc court has the power to grant an application and order en banc consideration of a case. What the parties disagree about is whether the en banc court must also review all applications and make the predicate determination that a conflict exists. 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, demands this interpretation.
{110} 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. Section (A)(2)(b) of the rule, which summarily explains the application process, states only that a party may file an application and that the application must include certain
{111} Section (A)(2)(a) of the rule also provides no guidance as to who must determine whether the decision in a case conflicts with another decision from the same district. 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.” (Emphasis added.)
{112} 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. This court has recognized that “each Court of Appeals is in a much better position than we are to decide how, in light of its internal organization and docket considerations, it may best proceed to expedite the orderly flow of its business.” DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189, 191, 431 N.E.2d 644 (1982). The rule itself suggests as much, as it grants to the courts of appeals discretion over procedures governing “determination of en banc proceedings.”
{113} 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. State v. Forrest, 10th Dist. No. 11AP-291, 2012-Ohio-938, 2012 WL 746402, at 12. 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.” Id. at 14. This procedure is not an unreasonable exercise of the court‘s discretion under
{115} It is true that when the panel finds that there is no merit to a party‘s application, the panel may deny the application without submitting it to the full court. But even this act does not deprive the en banc court of any authority. The ability of a court to order en banc consideration arises only if and when there is an intradistrict conflict.
{116} The state also argues that panels cannot be trusted to fairly review applications for en banc consideration. The state claims that panels have an interest in denying applications because a panel will not want to admit when its decision conflicts with other decisions within the district. We easily dispense with this concern. We presume that a judge is “fair and impartial and able to decide cases pending before him or her in accordance with the law and without regard to personal considerations.” In re Disqualification of Sadler, 100 Ohio St.3d 1220, 2002-Ohio-7472, 798 N.E.2d 7, 12.
{117} Finally, although
Conclusion
{118}
{119} For these reasons, we conclude that the Tenth District‘s handling of the state‘s application for en banc consideration was permissible under
Judgment affirmed.
PFEIFER, LANZINGER, and O‘NEILL, JJ., concur.
O‘CONNOR, C.J., and KENNEDY, J., concur in part and dissent in part.
O‘DONNELL, J., dissents.
KENNEDY, J., concurring in part and dissenting in part.
{120} I agree that
{121}
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. The en banc court shall consist of all full-time judges of the appellate district who have not recused themselves or otherwise been disqualified from the case.
(Emphasis added.)
{122}
{124} In contrast,
{125} This interpretation is consistent with the purpose of the en banc consideration. 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.‘” McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672, 116, quoting United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689-690, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960), quoting Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91, 96 (1954). Panel-only review deprives the en banc court of the opportunity to exercise this institution-wide control.
{126} The majority states, “Panel consideration does not * * * deprive the en banc court of its ultimate authority to grant en banc review. It simply allows the panel to perform the preliminary layer of review.” Majority opinion at 114.
{127} Aside from an en banc court‘s sua sponte ordering consideration of an intradistrict conflict, a party‘s application for en banc consideration is the only method by which a potential intradistrict conflict may reach a court of appeals.
{128} Permitting panel-only determinations as to whether intradistrict conflicts exist is not only an unreasonable interpretation of the language in
O‘CONNOR, C.J., concurs in the foregoing opinion.
O‘DONNELL, J., dissenting.
{129} Respectfully, I dissent.
{130} I would permit each member of a multijudge appellate court to decide whether an intradistrict conflict exists on a decision reached by an appellate court panel. This view, I believe, is embodied in the language of
{131} The rule‘s statement that “other procedures” regarding “en banc proceedings may be prescribed by local rule or ordered by the court,” id. at
{132} Accordingly, I dissent.
O‘CONNOR, C.J., concurs in the foregoing opinion.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellee.