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Taking a second look - en banc proceedings

Back in April, I chastised the 8th District for its decision in State v. Norman.  On further reflection, I should have kept my mouth shut.

In Norman, the defendant had pled guilty to failure to comply, drug trafficking, and tampering with evidence.  The law requires that any prison sentence for the former offense has to be run consecutively, and Norman argued that the judge's failure to tell him that required his plea to be vacated.  The 8th rejected the claim, relying on its decision six years earlier in State v. Dudenas, which in turn had relied on a 1988 Supreme Court case holding that a trial court's failure to advise a defendant that sentences could be run consecutively didn't invalidate the plea. 

As I pointed out at the time, the Supreme Court decision didn't control in Dudenas, because it didn't deal with a case where a consecutive sentence was mandatory, and a number of appellate courts had since distinguished it on that basis.  Even the Norman court acknowledged that the analysis in those cases was superior to that in Dudenas, but nonetheless concluded that Dudenas was "binding precedent" and the court was "duty-bound to follow it."

This triggered my Full Righteous Mode, and I lambasted the court for not realizing that

the 8th District is not a superior court to the 8th District; Dudenas is not binding, because you can overrule it.  And where the earlier opinion contains no analysis whatsoever, and other courts have engaged in the proper analysis to demonstrate its weaknesses, well, then overruled it should be.

So a few months later, I'm reading the Supreme Court's decision in Greenspan v. Third Federal, involving the question of whether a private cause of action existed for the unauthorized practice of law.  That's not important; what is important is that the 8th District had decided two cases on the very same issue.  The first held that the unauthorized practice of law was exclusively within the jurisdiction of the Supreme Court, and there was no private cause of action.  The second held the exact opposite, acknowledging the conflict with the first decision, but dismissing it by stating that the earlier opinion was "simply in error."

This wasn't the first time that dueling panels of the 8th had come to opposite conclusions; in In re J.J., the Supreme Court dealt with a question involving assignment of cases to visiting judges, and two different panels of the 8th had come out with conflicting decisions on the issue on the same day.  The Supreme Court in J.J. had held that "appellate courts are duty-bound to resolve conflicts within their respective appellate districts through en banc proceedings."  The court reiterated that in Greenspan, holding that, where two decisions from the same district are in conflict, "an en banc proceeding is necessary" to resolve such conflicts in order to "promote uniformity, finality, and predictability within appellate districts."

So last week, the 8th reconsidered its decision in Norman, vacated the earlier opinion, and reversed the judgment, concluding that

After further reflection, we are now persuaded that Dudenas’s failure to address the mandatory nature of the consecutive sentences for purposes of Crim.R. 11(C)(2)(a) makes it unviable as precedent for this case.

Did the panel screw up by not calling for an en banc determination of whether Dudenas should be overruled?  Not necessarily, as it turns out.  One of the key problems with en banc proceedings is lack of clarity as to when it is required.  The Rules Committee had proposed an amendment to the appellate rules a few years ago to cover those proceedings, but it was withdrawn prior to J.J. because of concerns over whether the en banc procedure was even constitutional.  Those questions were laid to rest in McFadden v. Cleveland State, but the proposed rule was never revived.  The local rules of the 6th, 9th, 10th, and 12th Districts mention en banc proceedings, but only in the context of who presides over them, rather than as to when they're necessary.  Oddly enough, the 8th District has the most comprehensive rule on the subject, by virtue of a standing order.

The Supreme Court hasn't provided a whole lot of guidance on the subject, either.  In McFadden, it held that it was within the discretion of the appellate court to determine whether a conflict even exists, and what happened on the remand in that case is instructive:  the 10th District decided that an en banc procedure wasn't necessary, because the earlier decision had been rejected by subsequent cases to the point where no conflict really existed.

To clear this up, the 8th District drafted a rule on the subject.  (Although the court's website reflects that the rule is only proposed, one of the staff attorneys assures me that it has gone into effect.)  The rule allows either the panel or one of the parties to request en banc consideration, and spells out how that is to be done. 

In any event, today's lesson is that overruling a district's prior decision is a good bit more difficult that I envisioned when I engaged in my little diatribe in April.

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