On October 2, 2008, the Ohio Supreme Court opened the door to the use of "en banc" proceedings in the district courts of appeals. In a case closely watched by appellate practitioners, a 5-2 majority of the Court found that "en banc" proceedings do not violate the Ohio Constitution.
In McFadden v. Cleveland State University1, the Ohio Supreme Court reviewed a decision by the Ohio Tenth District Court of Appeals (Franklin County), which had affirmed the dismissal of a plaintiff's lawsuit because it had been filed beyond the applicable two-year statute of limitations. Relying on a 1994 decision2 from the same court of appeals, the plaintiff argued that a six-year statute of limitations applied to his claim. The court of appeals disagreed with the plaintiff's argument, instead following a 2005 decision in which it applied a two-year limitations period3. The court of appeals rejected its 1994 decision and expressly overruled it4.
McFadden sought reconsideration. Citing the Ohio Supreme Court's two-year old decision in In re J.J.5, he argued that the Tenth District Court of Appeals was required to resolve its "intradistrict conflict" on the statute-of-limitations issue through an "en banc" proceeding -- i.e., by having all of the sitting Tenth District judges consider and decide the matter. In In re J.J,., the Ohio Supreme Court had held that courts of appeals were "duty bound" to resolve intradistrict conflicts through en banc proceedings6. Notwithstanding In re J.J., the Tenth District Court of Appeals denied McFadden's application, finding that en banc proceedings violated Section 3(A), Article IV of the Ohio Constitution7. The Ohio Supreme Court then took up the issue.
Section 3(A), Article IV of the Ohio Constitution states:
The state shall be divided by law into compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposition of each case.
In McFadden's case, the Tenth District held that en banc proceedings would violate this provision because such review would result in panels of more than three judges deciding cases. The Ohio Supreme Court disagreed with this reasoning, however, finding that Section 3(A), Article IV of the Ohio Constitution did not operate as a cap on the number of judges who could decide a particular case. Rather, the Court found that the requirement of "three judges" was simply "a quorum requirement related to the makeup of appellate panels in the 19th century"8. In light of this interpretation of the history behind the "three judges" requirement, the five-member majority found no constitutional problem with a court of appeals convening "en banc" proceedings to resolve an intradistrict conflict. To bolster its constitutional interpretation, the Court noted the need to ?definitively and efficiently resolve intradistrict conflicts? because such conflicts undermine the courts? ability to resolve legal disputes9. Thus, the Court reasoned that en banc proceedings are desirable to promote the ?finality and predictability? of the law within an appellate district9.
The Court therefore reversed the Tenth District's judgment and sent the case back to the court of appeals to determine (1) whether an intradistrict conflict actually existed and (2) if so, to conduct en banc proceedings11.
After the Ohio Supreme Court's decision in McFadden, it is now settled that Ohio's courts of appeals must convene en banc proceedings whenever it determines that two or more of its decisions conflict on a legal issue. How the courts of appeals are to convene such proceedings, however, is still up in the air. As the Ohio Supreme Court acknowledged in McFadden, there is no Ohio appellate rule governing such proceedings and only one appellate district in the state (the Eighth District, covering Cuyahoga County) has promulgated a rule governing such proceedings12. Until a uniform state appellate rule governing en banc procedures is in place, en banc proceedings will be governed by whatever local rules the various districts adopt after the McFadden decision.