We’ve lost our senses! We’ve forgotten about drug and device law!

But a court has just addressed another one of Herrmann’s old interests, and he can’t resist. (Beck played no role in drafting this post; don’t blame him for this one.)

Ohio has no state court analogue to Federal Rule of Appellate Procdure 35, which authorizes rehearings en banc by the courts of appeals.

Not only does Ohio not have such a rule, but Article IV, Section 3 of the Ohio Constitution provides that “three judges shall participate in the hearing and disposition of each [appellate] case,” which some people had interpreted to mean that rehearings en banc — which would involve more than three judges — would be unconstitutional. For a description of the background of the problem, see Mark Herrmann, “Ohio’s Missing En Banc Procedure,” Cleveland Bar Journal 6 (Oct. 2003).

The Ohio Supreme Court addressed that issue this morning. In McFadden v. Cleveland State University, Slip Opinion No. 2008-Ohio-4914 (Ohio Oct. 2, 2008) (link here), the Ohio Supreme Court held that rehearings en banc are permitted in Ohio. Chief Justice Moyer wrote the opinion, which was joined by four other justices.

Here’s the entire Syllabus of the Court:

“1. En banc proceedings do not violate Section 3(A), Article IV of the Ohio
Constitution.

2. Courts of appeals have discretion to determine whether an intradistrict
conflict exists; if the judges of a court of appeals determine that two or
more decisions of the court on which they sit are in conflict, they must
convene en banc to resolve the conflict.”

Now, back to drug and device law.

We promise.