Opinion
2021-0215
12-30-2022
STATE v. HAYNES
CASE ANNOUNCEMENTS
RECONSIDERATION OF PRIOR DECISIONS
Reported at ––– Ohio St.3d ––––, 2022-Ohio-4473, ––– N.E.3d ––––. On motion for reconsideration. Motion denied.
Donnelly, J., concurs, with an opinion.
Kennedy, Fischer, and DeWine, JJ., dissent with an opinion.
Fischer, J., dissents, with an opinion.
DONNELLY, J., concurring.
{¶ 1} I agree unreservedly with the majority's decision to deny the motion for reconsideration in this case. I write separately, however, to express my surprise at the dissenting justices’ newfound appreciation of a party's opportunity to file a memorandum opposing a motion for reconsideration. Waiting for memoranda opposing motions for reconsideration is not unlike waiting for the sun to rise. We know exactly what is going to happen: the sun is going to rise, and the parties opposing reconsideration are going to extol the virtues of the opinion that determined that their side carried the day. If the motion for reconsideration itself does not persuade us to reconsider our decision, nothing that the party who opposes reconsideration might say is going to convince us to grant reconsideration. (Deciding to grant reconsideration before the party opposing reconsideration has been heard is an entirely different matter.)
{¶ 2} This court has a historied practice of accelerating internal timelines during election years based on the reasonable understanding that, to the extent possible, motions for reconsideration should be decided by the same court that decided the case on the merits. For example, this court ruled on 31 motions for reconsideration between December 18, 2020, and the end of that year. In some of those cases, the court considered and ruled on the motion before the time for filing a memorandum in opposition had expired. Notably, the three justices who dissent today participated in this court's rulings on the motions for reconsideration in all of those cases (except for two cases in which Justice Fischer recused himself). None of the dissenting justices objected to this court's decision at the end of 2020 to rule on those motions before the opposing party's response time had expired, nor did any of them file a dissenting opinion in 2020 on the grounds they raise today, presumably because they agreed at that time that "the interests of justice warrant[ed] immediate consideration [of the motions] by the Supreme Court," S.Ct.Prac.R. 4.01(C). The dissenters’ sudden and inconsistent concern about the injustice that may occur by ruling on motions for reconsideration before the composition of the court changes is at best disingenuous.
{¶ 3} The motion for reconsideration filed in this case—like all the others this court has ruled on this month—is properly before us and has been properly resolved by a majority of the court.
KENNEDY, FISCHER, and DEWINE, JJ., dissenting.
{¶ 4} The Rules of Practice of the Supreme Court of Ohio permit a party to file a motion for reconsideration within ten days after entry of this court's judgment. S.Ct.Prac.R. 18.02(A). Our rules also afford a party opposing reconsideration the same amount of time to respond to the motion. S.Ct.Prac.R. 18.03(A). Because, under the circumstances of this specific case, nothing in the Rules of Practice gives this court the authority to deny a party opposing reconsideration the opportunity to be heard, we dissent. {¶ 5} S.Ct.Prac.R. 4.01 sets forth the general rules for filing a "[m]otion for order or relief." S.Ct.Prac.R. 4.01(B)(1) establishes the deadline for a party to file a response to such a motion: "If a party files a motion with the Supreme Court, any other party may file a response to the motion within ten days from the date the motion is filed, unless otherwise provided in these rules or by order of the Supreme Court." And S.Ct.Prac.R. 4.01(C) provides that "[t]he Supreme Court may act upon a motion before the deadline for filing a response to the motion, if the interests of justice warrant immediate consideration by the Supreme Court."
{¶ 6} S.Ct.Prac.R. 18.02(A) provides a specific deadline for filing a motion for reconsideration, stating that "[e]xcept as provided in S.Ct.Prac.R. 12.08(B), any motion for reconsideration must be filed within ten days after the Supreme Court's judgment entry or order is filed with the Clerk of the Supreme Court." And S.Ct.Prac.R. 18.03(A) affords a party opposing reconsideration an opportunity to be heard: "Except as provided in S.Ct.Prac.R. 12.08(B), a party opposing reconsideration may file a memorandum in response to a motion for reconsideration within ten days of the filing of the motion."
{¶ 7} The default rule, then, is that the party opposing a motion for reconsideration may file a response to the motion within the time parameters of the rule. S.Ct.Prac.R. 4.01(C) creates a limited exception to this default rule, providing that a motion may be acted upon immediately, but only if the interests of justice warrant it.
{¶ 8} The "interests of justice" involve "[t]he proper view of what is fair and right in a matter in which the decision-maker has been granted discretion." Black's Law Dictionary 971 (11th Ed.2019). It has been said that " ‘[j]ustice is even-handed and equally administered to all, irrespective of any and all considerations.’ " (Brackets added in Clay.) State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 39, quoting Koppelman v. Commr. of Internal Revenue , 202 F.2d 955, 956 (3d Cir. 1953) (Kalodner, J., dissenting).
{¶ 9} There are few opinions from this court discussing when expedited review is warranted. In State ex rel. Shemo v. Mayfield Hts. , we granted expedited consideration under former S.Ct.Prac.R. XIV(4)(C), the predecessor to S.Ct.Prac.R. 4.01(C). 93 Ohio St.3d 1, 4, 752 N.E.2d 854 (2001). In that case, the party seeking expedited review had allegedly been deprived of economically viable use of property for over nine years; this court had ruled in favor of the movant in prior litigation regarding the zoning classification of the property, and the failure to act on the motion immediately could have caused irreparable harm. Id . In State ex rel. Taft-O'Connor ‘98 v. Franklin Cty. Court of Common Pleas , we expedited our consideration of a case reviewing a trial court's restraint on campaign speech. 83 Ohio St.3d 487, 488, 700 N.E.2d 1232 (1998). We explained: "Given the proximity of the November election and the statewide importance of the issue involved, we find that this cause merits the requested expedited consideration." Id. ; see also State ex rel. Bona v. Orange , 85 Ohio St.3d 18, 21, 706 N.E.2d 771 (1999) (discussing cases in which we granted motions to expedite in advance of an election).
{¶ 10} But even in those cases, we did not deny the opposing party the opportunity to respond. And in this case, there is nothing to warrant expedited consideration of the motion for reconsideration that would justify denying the opposing party an opportunity to be heard. Notably, the movant in this case did not even ask the court to expedite consideration of the motion for reconsideration. And there is no suggestion that irreparable harm will result if the court waits a few days for the opposing party to respond. There are simply no facts before us that suggest that the interests of justice warrant this court's immediate consideration, sua sponte, of the motion for reconsideration.
{¶ 11} What sets this case apart from the numerous motions for reconsideration this court has decided recently without expediting them sua sponte? A change in the court's membership is imminent, and the majority must believe that it would be an injustice for a different composition of this court to rule on a motion for reconsideration than decided the case on original submission. But that fact, standing alone, does not warrant expedited review.
{¶ 12} In Jezerinac v. Dioun , this court addressed what happens when a case is decided by a court of appeals and a motion for reconsideration is considered after a member of the original panel leaves the bench. 168 Ohio St.3d 286, 2022-Ohio-509, 198 N.E.3d 792, ¶ 1. The question was whether that judge's successor could hear the motion when App.R. 26(A)(1)(c) provides that a motion for reconsideration "shall be considered by the panel that issued the original decision." Id.
{¶ 13} This court's holding that the successor could hear the motion was unanimous. We explained that "[a] court's identity is wholly independent from the specific individuals who make up its personnel. Thus, a ‘court as an entity remains the same, regardless of any change in personnel.’ " Id. at ¶ 17, quoting Cincinnati v. Alcorn , 122 Ohio St. 294, 297, 171 N.E. 330 (1930). This court continued:
The independent existence of courts and panels separate and apart from their particular members is crucial to the continuity of the judiciary itself. A judge exercises judicial authority only by virtue of the office he occupies during his active tenure on the bench. * * * The judicial authority belongs to the office, not the judge.
Id . at ¶ 19.
{¶ 14} The same is true for this court and its members. The interests of justice therefore do not warrant expediting review of the motion for reconsideration filed in this case simply because it was filed when a changeover in the court's membership is at hand. It is not an injustice for a court composed of different members to hear a motion for reconsideration. It is a situation contemplated by our Constitution, which provides for six-year terms of office for justices. See Ohio Constitution, Article IV, Section 6 (A). Despite a change in membership, the court as an entity remains the same. And because the interests of justice require the fair and evenhanded treatment of parties before this court, the interests of justice also demand that motions for reconsideration that are filed this month be treated the same as motions for reconsideration that were filed last month. After all, " ‘[j]ustice is served by the consistent and methodical application of the law.’ " State v. LaRosa , 165 Ohio St.3d 346, 2021-Ohio-4060, 179 N.E.3d 89, ¶ 64 (Donnelly, J., concurring in part and dissenting in part), quoting State v. Tijerina , 3d Dist. Defiance No. 4-02-01, 2002-Ohio-2979, ¶ 11.
{¶ 15} S.Ct.Prac.R. 18.03(A) affords the opposing party an opportunity to respond to a motion for reconsideration. This court has allowed countless other parties the opportunity to respond to motions for reconsideration without expediting consideration of their cases sua sponte. And the interests of justice do not warrant expedited consideration here simply because a change in the membership of this court is approaching. Consequently, we dissent from the majority's decision today to advance and rule on the motion for reconsideration that was filed in this case without allowing the opposing party the opportunity to respond.
FISCHER, J., dissenting.
{¶ 16} I fully join the joint dissent. I write separately to detail my personal position regarding motions for reconsideration.
{¶ 17} S.Ct.Prac.R. 18.03 provides that parties and amici curiae have ten days after a motion for reconsideration is filed in which to file a memorandum in response to the motion. The court is issuing a decision in this case before that time has run. Disposing of this motion prematurely is a disservice to the parties involved in this case and to the public. Any interest in disposing of the motion before a change in this court's composition must yield to the fair and equal administration of this court's own rules. This is especially so since S.Ct.Prac.R. 18.04(A) provides that when a motion for reconsideration has been filed in a case, no mandate shall issue in that case until the motion has been disposed of.
{¶ 18} In State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, I detailed the unusual position that justices find themselves in when they are faced with voting on a motion for reconsideration that has been filed in a case in which they did not previously participate. Id . at ¶ 24 (Fischer, J., concurring in part and dissenting in part); see also State v. Aalim , 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 51 (Fischer, J., concurring in part and dissenting in part). As stated in my separate opinion in Gonzales , my practice upon joining this court was to deny such motions for reconsideration. Id. at ¶ 24; see also Aalim at ¶ 51.
{¶ 19} To my knowledge, no other justice has adopted my position, either when Gonzales and Aalim were decided or any time thereafter. Because my view has not been adopted by this court, I have abided by the majority's view of allowing new justices to participate in ruling on motions for reconsideration that are filed in cases that were decided before the new justices joined the court. The justices who have joined the court after me have routinely participated in deciding such motions for reconsideration, with those justices having voted on such motions in more than 50 cases.
{¶ 20} Justice Brunner voted on motions for reconsideration in at least 13 cases that were decided before she joined the court. See Siltstone Servs., L.L.C. v. Guernsey Cty. Community Dev. Corp. , 161 Ohio St.3d 1441, 2021-Ohio-375, 162 N.E.3d 826 (Supreme Court case No. 2020-1092) ; Siltstone Servs., L.L.C. v. Guernsey Cty. Community Dev. Corp. , 161 Ohio St.3d 1441, 2021-Ohio-375, 162 N.E.3d 826 (Supreme Court case No. 2020-1099) ; Wilson v. Durrani , 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 580 ; Scott v. Durrani , 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 586 ; Carr v. Durrani , 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 586 ; Schuster v. Durrani , 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 587 ; Deck v. Durrani , 161 Ohio St.3d 1453, 2021-Ohio-534, 163 N.E.3d 588 ; State ex rel. Townsend v. Kilbane , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 588 ; State ex rel. Ames v. Portage Cty. Bd. of Commrs. , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 589 ; State v. Hrytsyak , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 580 ; State ex rel. Ames v. Rootstown Twp. Bd. of Trustees , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 596 ; State v. Moore , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 597 ; State v. McDaniel , 161 Ohio St.3d 1454, 2021-Ohio-534, 163 N.E.3d 590.
{¶ 21} Justices Donnelly and Stewart voted on motions to reconsider in at least 11 cases that were decided before they joined the court. See State ex rel. Kesterson v. Kent State Univ. , 154 Ohio St.3d 1512, 2019-Ohio-601, 116 N.E.3d 1290 (Supreme Court case No. 2016-0615) ; State ex rel. Kesterson v. Kent State Univ. , 154 Ohio St.3d 1512, 2019-Ohio-601, 116 N.E.3d 1290 (Supreme Court case No. 2016-1123) ; Satterfield v. Ameritech Mobile Communications, Inc., 154 Ohio St.3d 1512, 2019-Ohio-601, 116 N.E.3d 1290 ; Parker v. Keener , 154 Ohio St.3d 1512, 2019-Ohio-601, 116 N.E.3d 1290 ; State v. Tench , 154 Ohio St.3d 1522, 2019-Ohio-769, 118 N.E.3d 259 ; State v. Heiney, 154 Ohio St.3d 1522, 2019-Ohio-769, 118 N.E.3d 259 ; State v. Ervin , 154 Ohio St.3d 1522, 2019-Ohio-769, 118 N.E.3d 259 ; State v. Martin , 154 Ohio St.3d 1522, 2019-Ohio-769, 118 N.E.3d 259 ; Lowder v. Kantak , 154 Ohio St.3d 1522, 2019-Ohio-769, 118 N.E.3d 259 ; In re A.P. , 154 Ohio St.3d 1523, 2019-Ohio-769, 118 N.E.3d 259 ; RRL Holding Co. of Ohio, L.L.C. v. Stewart , 154 Ohio St.3d 1523, 2019-Ohio-769, 118 N.E.3d 259.
{¶ 22} Justice DeGenaro voted on motions for reconsideration in at least 28 cases that were decided before she joined the court. See State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 1411, 2018-Ohio-723, 92 N.E.3d 881 ; State ex rel. Martin v. Buchanan , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; Zidron v. Metts , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; State ex rel. McKinney v. Schmenk , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; Deutsche Bank Natl. Trust Co. v. Eversole , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; Moore v. Cleveland , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; Bank of Am., N.A. v. Brown , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; State v. Neil , 152 Ohio St.3d 1412, 2018-Ohio-723, 92 N.E.3d 881 ; Notestine Manor, Inc. v. Logan Cty. Bd. of Revision , 152 Ohio St.3d 1425, 2018-Ohio-923, 93 N.E.3d 1005 ; In re Rev. of Alternative Energy Rider Contained in Tariffs of Ohio Edison Co. , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; State ex rel. Singer v. Fairland Local School Dist. Bd. of Edn. , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; Koprivec v. Rails-to-Trails of Wayne Cty. , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; State ex rel. GateHouse Media Ohio Holdings II, Inc. v. Pike Cty. Coroner's Office , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; Capital Care Network of Toledo v. Dept. of Health , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; State ex rel. Richland Cty. Children Servs. v. Richland Cty. Court of Common Pleas , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; State v. Parsons , 152 Ohio St.3d 1449, 2018-Ohio-1600, 96 N.E.3d 302; Dibert v. Carpenter , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 302; Park View Fed. Savs. Bank v. Nader , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 302; Clarkwestern Dietrich Bldg. Sys., L.L.C. v. Certified Steel Stud Assn., Inc. , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 302; State v. Stewart , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; State v. Whites Landing Fisheries, L.L.C. , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; State v. Filip , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; Martens v. Findlay , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; Hillman v. O'Shaughnessy , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; Cleveland v. Brown , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; State ex rel. Thomas v. Disanto , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; State v. Pelmear , 152 Ohio St.3d 1450, 2018-Ohio-1600, 96 N.E.3d 303; State v. Beasley , 152 Ohio St.3d 1468, 2018-Ohio-1796, 97 N.E.3d 503.
{¶ 23} I agree with the aspiration set forth in the concurring opinion that, to the extent possible, motions for reconsideration should be decided by the same court that decided the case on the merits. See concurring opinion, ¶ 2. However, this court's failure to decide a number of cases within a time frame that would allow motions for reconsideration and any responses to those motions to be filed before the end of the year does not mean that the court should bend its own rules in order to issue a decision on the motions for reconsideration that are filed before there is a change in the court's membership. The fact that this court did so in 2020 is regrettable, and perhaps I should have made public the private concerns I then had with the court's deciding those motions before they were ripe for review (notably, the concurring opinion cites no instances of this court's doing so before 2020, and the time constraints I have been forced to work within in drafting this opinion have prevented me from conducting research to determine whether the court's violation of its own rules is indeed a "historied practice" as implied in the concurring opinion, id. at ¶ 2.
{¶ 24} This court should have taken the opportunity today to realign itself with its own rules by waiting to rule on this and other pending motions for reconsideration until those motions are ripe for review. While the concurring opinion discounts the effect that any response might have on this court's disposition of unripe motions for reconsideration, that argument overlooks the fact that a justice or justices may wish to grant reconsideration in cases like this but would prefer to hold off on making a final decision until any responses by opposing parties or amici curiae have been filed. Put simply, this court should issue a decision only when it has had an opportunity to fully consider an issue, and justice demands that this court follow its own rules of practice. We have not had an opportunity to fully consider the motion for reconsideration filed in this case, as our rules still provide time for opposing parties and amici curiae to be heard by weighing in on the motion for reconsideration.
{¶ 25} Because the now-standard practice of this court is to allow all sitting justices to participate in deciding motions for reconsideration, regardless of whether a particular justice participated in the court's original decision in the case, and for the reasons outlined in the joint dissent, I am convinced that any motions for reconsideration that are now pending before the court should be reviewed and decided as outlined in this court's rules, i.e., after we have received any responsive filing (or filings) or after the time for such response has expired.
{¶ 26} I accordingly dissent from the court's decision to dispose of motions for reconsideration before those motions are ripe for review.