October 23, 2013
En Banc Consideration

by Justice Paul E. Pfeifer

On May 16, 2009, Al E. Forrest was sitting in a parked vehicle on Omar Drive in Columbus. A police officer approached the vehicle, observed Forrest’s behavior, and ordered him 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.

After Forrest was indicted on drug-related charges, he filed a motion to suppress the evidence obtained in the search. The trial court granted the motion, finding that the search had violated the Fourth Amendment, which protects against unreasonable searches.

In response, the state filed an appeal with the Tenth District Court of Appeals. A three-judge panel affirmed the trial court’s decision. After that, the state filed simultaneous applications with the Tenth District for reconsideration and for “en banc” consideration. An “en banc” proceeding is one in which all full-time judges of a court 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. These intradistrict conflicts develop when different panels of judges hear the same issue, but reach different results.

In addition to requesting the en banc consideration, the state also filed a motion to have all eight judges rule on the state’s application for en banc consideration. But it didn’t happen.

Instead, 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. The panel determined that its initial decision did not conflict with prior Tenth District cases, and therefore concluded en banc reconsideration of the initial appeal was unwarranted.

After that ruling, the case came before us – the Supreme Court of Ohio – for a final review.

The crux of the issue before us was this: the parties involved disagreed about whether a panel of the court may make the initial determination regarding whether a conflict exists. We therefore had to determine if the rules that govern appellate procedures allow a panel of district court judges, instead of the en banc court, to review an application for en banc consideration and make the initial mandatory determination of whether an intradistrict conflict exists.

The pertinent rule in this case states: “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 rule goes on to say that 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.

In this case, 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. They disagree, however, about whether the en banc court must also review all applications and make the initial determination that a conflict exists.

Forrest’s attorneys argued that the rule is silent as to who must make the initial conflict determination. Therefore, they concluded, a panel of judges may perform that task.

Conversely, the state maintained that the en banc court must review all applications and determine, by majority vote, whether a conflict exists. The state argued that the plain language of the rule, as well as the policies behind en banc review, demands this interpretation.

Based on our reading of the rule, we agreed 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 rule, which explains the application process, states only that a party may file an application and that the application must include certain information.

It doesn’t say that the en banc court must be the body to review the application. Nor does it provide guidance as to who must determine whether the decision in a case conflicts with another decision from the same district.

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.

We noted that although the rule in question 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, bypassing the panel altogether.

The rule requires an intradistrict conflict before a court may grant an application for en banc consideration. The rule does not, however, state who must determine whether a conflict actually exists. Because the rule is silent on the issue, either the en banc court or a panel of the court may perform this task.

If a panel performs this task, the panel may find that no intradistrict conflict exists and deny the application without submitting it to the full court. If, however, the panel determines that conflict does exist, the matter must then be submitted to the en banc court for a final determination of whether to order en banc consideration.

For these reasons, we concluded that the Tenth District’s handling of the state’s application for en banc consideration was permissible. We therefore affirmed – by a four-to-three vote – the Tenth District’s judgment denying the states’ motion to have the en banc court rule on the state’s application for en banc consideration.

EDITOR'S NOTE: The case referred to is State v. Forrest, 136 Ohio St.3d 134, 2013-Ohio-2409. Case Nos. 2012-0415 and 2012-0416. Decided June 12, 2013. Majority opinion written by Justice Judith L. French.