[Cite as State v. Forrest, 136 Ohio St.3d 134, 2013-Ohio-2409.]




         THE STATE OF OHIO, APPELLANT, v. FORREST, APPELLEE.
         [Cite as State v. Forrest, 136 Ohio St.3d 134, 2013-Ohio-2409.]
Because App.R. 26(A)(2) is silent on the issue of who must make the initial
        determination whether an intradistrict conflict exists, either an en banc
        court or a panel of the court may make the determination.
    (Nos. 2012-0415 and 2012-0416—Submitted February 5, 2013—Decided
                                      June 12, 2013.)
    APPEAL from and CERTIFIED by the Court of Appeals for Franklin County,
                 No. 11AP-291, 2012-Ohio-280 and 2012-Ohio-938.
                                 ____________________
        FRENCH, J.
        {¶ 1} 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
        {¶ 2} 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.
        {¶ 3} 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-
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judge panel of the Tenth District Court of Appeals affirmed the judgment. State
v. Forrest, 10th Dist. No. 11AP-291, 2011-Ohio-6234, ¶ 20.
       {¶ 4} 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, ¶ 1, 16. The panel found that
its initial decision did not conflict with prior Tenth District cases and that en banc
consideration was therefore unwarranted under App.R. 26(A)(2). Id. at ¶ 15. The
panel also denied the state’s motion for reconsideration. Id. at ¶ 16.
       {¶ 5} 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, and State v. Morris, 9th Dist. No.
09CA0022-M, 2010-Ohio-5973. 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
       {¶ 6} The certified-conflict question states as follows: “Whether the
entire en banc court as defined in App.R. 26(A)(2) must participate in the decision
whether to grant or deny an application for en banc consideration.” Id. After
reviewing the record and the parties’ briefs, we conclude that the parties do not
actually dispute that only the en banc court has the power to ultimately grant an
application and order en banc consideration of a case. What the parties disagree
about is whether a panel of the court may make the initial determination regarding



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whether a conflict exists. We will therefore consider the following modified
question that more accurately reflects the issue at stake: Does App.R. 26(A)(2)
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?
                                      Analysis
       {¶ 7} 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.         App.R. 26(A)(2)(a); McFadden v.
Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672,
¶ 10. The purpose of en banc proceedings is to resolve conflicts of law that arise
within a district.    App.R. 26(A)(2)(a); McFadden at ¶ 10, 15-16.           These
intradistrict conflicts develop when different panels of judges hear the same issue,
but reach different results. McFadden at ¶ 15. This “create[s] confusion for
lawyers and litigants and do[es] not promote public confidence in the judiciary.”
In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 18.
Resolution of intradistrict conflicts promotes uniformity and predictability in the
law, and a larger appellate panel provides the best possible means of resolution.
McFadden at ¶ 15-16.
       {¶ 8} App.R. 26(A)(2) governs en banc procedure in the courts of
appeals. The rule provides:


               (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



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       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.
App.R. 26(A)(2)(a) and (b).
       {¶ 9} 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.
       {¶ 10} 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.



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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 information. App.R. 26(A)(2)(b). It does not say that the en banc
court must be the body to review the application.
       {¶ 11} 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.) App.R. 26(A)(2)(a).
Here, the rule states only that “a determination” must be made; it does not state
who must make the determination.          In fact, the rule never uses the verb
“determine,” only the noun “determination.” Because the rule does not assign a
subject to make the “determination,” we cannot agree with the state that the en
banc court must handle the initial conflict determination. The rule expressly gives
just one task to the en banc court, i.e., to “order” the en banc proceeding, and the
rule assumes that the conflict “determination” has already taken place at that
point. We therefore conclude that App.R. 26(A)(2) is silent as to who must
participate in the initial review of an application for en banc consideration and the
assessment whether an intradistrict conflict exists.      It permits, but does not
require, the en banc court to undertake these tasks.
       {¶ 12} 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



                                         5
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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.”
App.R. 26(A)(2)(e) (“Other procedures governing the initiation, filing, briefing,
rehearing, reconsideration, and determination of en banc proceedings may be
prescribed by local rule or as otherwise ordered by the court”).
       {¶ 13} 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,
at ¶ 2. 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 ¶ 4. This procedure is not an unreasonable exercise of the
court’s discretion under App.R. 26(A)(2).
       {¶ 14} We do not share the state’s concerns regarding panel review of en
banc applications. The state worries that panel review deprives the other district
judges of their prerogative to grant or deny en banc consideration, thereby
defeating the goal of majority control. Panel consideration does not, however,
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.
       {¶ 15} 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. App.R. 26(A)(2)(a). If there is no conflict, then the en banc
court has no need to consider the application. Moreover, a majority of the en
banc court is always free to order en banc consideration sua sponte, regardless of




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the panel’s assessment. App.R. 26(A)(2)(b). In the end, a panel can never take
away the en banc court’s ability to order an en banc proceeding.
       {¶ 16} 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, ¶ 2.
       {¶ 17} Finally, although App.R. 26(A)(2) 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 and assessment of whether an intradistrict conflict exists, bypassing the
panel altogether. The Eighth and Ninth District Courts of Appeals chose such an
approach in Kelley v. Ferraro, 8th Dist. No. 92446, 2010-Ohio-4179, and State v.
Morris, 9th Dist. No. 09CA0022-M, 2010-Ohio-5973, the cases that formed the
basis for the certified conflict here. In both Kelley and Morris, the court of
appeals convened en banc to review a party’s application for en banc
consideration. In each case, the full court assessed the merits of the applicant’s
conflict claim, and a majority of the en banc court voted to deny the application
based on the absence of an intradistrict conflict. Kelley at ¶ 19; Morris at ¶ 14.
This practice of immediate full-court participation is permissible under the rule
and under our holding today. It is simply not required.
                                    Conclusion
       {¶ 18} App.R. 26(A)(2) 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



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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 a 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.
        {¶ 19} For these reasons, we conclude that the Tenth District’s handling
of the state’s application for en banc consideration was permissible under App.R.
26(A)(2). Accordingly, we affirm the Tenth District’s judgment denying the
state’s motion to have the en banc court rule on the state’s application for en banc
consideration, and we answer the certified conflict question, as we have modified
it, in the affirmative.
                                                                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.
        {¶ 20} I agree that App.R. 26(A)(2)(a) requires an initial determination as
to whether an intradistrict conflict exist. However, I believe that the rule requires
that the en banc court, not just a panel of judges, make that initial determination.
Therefore, I respectfully concur in part and dissent in part.
        {¶ 21} App.R. 26(A)(2)(a) 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. The en banc court shall consist of all full-time judges of



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        the appellate district who have not recused themselves or otherwise
        been disqualified from the case.


(Emphasis added.)
        {¶ 22} App.R. 26(A)(2)(a) is not a model of clarity with regard to who
makes the determination whether an intradistrict conflict exists. However, when
App.R. 26 is construed as a whole, it is more reasonable to interpret App.R.
26(A)(2)(a) as indicating that the en banc court makes the determination whether
an intradistrict conflict exists. See generally State v. Everette, 129 Ohio St.3d
317, 2011-Ohio-2856, 951 N.E.2d 1018, ¶ 26 (court construed App.R. 9(A) by
examining it “as a whole”).
        {¶ 23} App.R. 26(A)(1) addresses applications for reconsideration of “any
cause or motion submitted on appeal.” An application for reconsideration is
considered “by the panel that issued the original decision.” (Emphasis added.)
App.R. 26(A)(1)(c).
        {¶ 24} In contrast, App.R. 26(A)(2) addresses “en banc consideration.”
“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.”
App.R. 26(A)(2)(a). The word “panel” never appears in App.R. 26(A)(2)(a). The
only subject in the first sentence of App.R. 26(A)(2)(a) is “majority of the en banc
court.” Therefore, I believe that the more logical and reasonable interpretation of
App.R. 26(A)(2)(a) is that the en banc court makes the initial determination
whether an intradistrict conflict exists.
        {¶ 25} 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



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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, ¶ 16, 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.
        {¶ 26} 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
¶ 14.
        {¶ 27} 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.
App.R. 26(A)(2)(b).     Allowing panel-only review of these applications may
permit a legitimate intradistrict conflict to escape consideration. Just as different
panels of judges may reach different results in addressing the same issue, thereby
creating an intradistrict conflict, it is entirely possible that one panel would
identify an intradistrict conflict between two cases, while another panel would
not. Sometimes determining whether a conflict exists is a difficult question to
answer, and reasonable minds occasionally may differ on the answer. See, e.g.,
Blair v. Sugarcreek Twp. Bd. of Trustees, 129 Ohio St.3d 1447, 2011-Ohio-4217,
951 N.E.2d 1045 (three justices dissented from the court’s determination that a
conflict between appellate districts existed); see also State v. Baker, 126 Ohio
St.3d 1215, 2010-Ohio-3235, 931 N.E.2d 122 (three justices dissented from the
court’s sua sponte dismissal of the cause for “want of conflict”). While these
cases may be more the exception than the rule, they nevertheless prove that
deciding whether a conflict exists is not necessarily a cut-and-dried determination.




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Having the en banc court examine all alleged conflicts would decrease the chance
that an intradistrict conflict would escape review.
       {¶ 28} Permitting panel-only determinations as to whether intradistrict
conflicts exist is not only an unreasonable interpretation of the language in App.R.
26(A)(2)(a), but also undermines the purpose of en banc consideration.
Therefore, I would answer the certified question, as modified by the majority
opinion, in the negative and hold that App.R. 26(A)(2)(a) requires the en banc
court to make the initial determination as to whether an intradistrict conflict
exists. Accordingly, I respectfully concur in part and dissent in part.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                             ____________________
       O’DONNELL, J., dissenting.
       {¶ 29} Respectfully, I dissent.
       {¶ 30} 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 App.R.
26(A)(2)(a), which reads, “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.) The view that the hearing panel of the three appellate court judges who
heard the case at issue should make the decision regarding an intradistrict conflict
contravenes App.R. 26.
       {¶ 31} The rule’s statement that “other procedures” regarding “en banc
proceedings may be prescribed by local rule or ordered by the court,” id. at
(A)(2)(e), does not permit a court to promulgate a local rule that conflicts with
App.R. 26, which, after all, has been promulgated to achieve statewide uniformity
and clarity and also to prevent idiosyncratic differences from permeating the
appellate process.



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       {¶ 32} Accordingly, I dissent.
       O’CONNOR, C.J., concurs in the foregoing opinion.
                            ____________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellee.
                          ________________________




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