State v. Pembaur, 81-588
| Decision Date | 03 February 1982 |
| Docket Number | No. 81-588,81-588 |
| Citation | 69 Ohio St.2d 110,430 N.E.2d 1331 |
| Parties | , 23 O.O.3d 159 The STATE of Ohio, Appellant, v. PEMBAUR, Appellee. |
| Court | Ohio Supreme Court |
Simon L. Leis, Jr., Pros. Atty., Leonard Kirschner, William E. Breyer and Bruce Garry, Cincinnati, for appellant.
Messerman & Messerman Co., L.P.A., and Gerald A. Messerman, Cleveland, for appellee.
Section 3 of Article IV of the Ohio Constitution provides, in part:
Thus, under the Ohio Constitution, a valid judgment of a Court of Appeals must have the concurrence of at least two judges. In the case at bar, this constitutional requirement was not satisfied. Although Judge Bettman may have indicated to his colleagues an opinion that the appellant's conviction should be reversed, on the date of disposition he no longer was a judge of the Court of Appeals and was not qualified to participate in that court's decision. The remaining two judges differed as to the proper disposition of the cause. Cf. State v. Sioux Falls Brewing Co. (1894), 5 S.D. 360; 58 N.W. 928.
The constitutional requirement that a majority of the Court of Appeals judges hearing a cause concur in the judgment was not met in this case. Therefore, the judgment of the Court of Appeals is vacated and the cause remanded to that court for a rehearing.
Judgment accordingly.
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