McFadden v. Cleveland State Univ., 2007-0705.

• Decision Date: 02 October 2008
• Docket Number: No. 2007-0705.,2007-0705.
• Parties: McFADDEN, Appellant, v. CLEVELAND STATE UNIVERSITY, Appellee.
• Court: Ohio Supreme Court

896 N.E.2d 672

120 Ohio St.3d 54

2008-Ohio-4914

McFADDEN, Appellant, v. CLEVELAND STATE UNIVERSITY, Appellee.

No. 2007-0705.

Supreme Court of Ohio.

Submitted April 23, 2008.

Decided October 2, 2008.

Gallagher Sharp and Timothy J. Fitzgerald, Cleveland; and Dennis J. Niermann Co., L.P.A., and Dennis J. Niermann, Cleveland, for appellant.

Nancy Hardin Rogers, Attorney General, Benjamin C. Mizer, Solicitor General, Kimberly A. Olson, Deputy Solicitor, Susan M. Sullivan, Assistant Solicitor, and Randall P. Knutti, Assistant Attorney General, for appellee.

MOYER, C.J.

I

{¶ 1} This appeal presents two issues for our consideration: (1) whether en banc proceedings in a court of appeals violate Section 3(A), Article IV of the Ohio Constitution and (2) if they do not violate the Constitution, whether a court of appeals errs by refusing to convene en banc to resolve an intradistrict conflict in two or more opinions rendered by the court. For the following reasons, we hold that en banc proceedings are constitutional and that courts of appeals have discretion to determine whether an intradistrict conflict warranting en banc review exists. Because the court of appeals held that en banc proceedings are unconstitutional and did not formally deny such review, we remand this case to the court of appeals so that the court may determine whether en banc proceedings are appropriate in this case.

II

{¶ 2} Plaintiff-appellant, Kenneth D. McFadden, began working for defendant-appellee Cleveland State University in 1998 as a coordinator of sales, marketing, and promotions in the athletic department. On June 11, 2003, the university terminated his employment.

{¶ 3} McFadden filed a complaint in the Court of Claims on January 30, 2006, alleging that the university had fired him because of his race. The university moved to dismiss the complaint or, alternatively, for summary judgment, arguing that McFadden failed to file his complaint within the two-year statute of limitations for such claims in R.C. 2743.16(A). The Court of Claims granted summary judgment to the university, finding that the statute of limitations barred the claim.

{¶ 4} McFadden appealed, arguing that a six-year statute of limitations applied to his claims, citing for support an unreported decision from the Court of Appeals for Franklin County, Senegal v. Ohio Dept. of Rehab. & Corr. (Mar. 10, 1994), Franklin App. No. 93API08-1161, 1994 WL 73895. Senegal held that the six-year statute of limitations in R.C. 4101.17 governs employment-discrimination claims against the state. Id. at *3.

{¶ 5} However, in a subsequent decision, the court of appeals called Senegal "an aberration" that "does not represent existing law on this court's application of the Court of Claims Act's statute of limitations." McCoy v. Toledo Corr. Inst., Franklin App. No. 04AP-1098, 2005-Ohio-1848, 2005 WL 914664, ¶ 10. McCoy held that the two-year statute of limitations in R.C. 2743.16(A) applied to discrimination claims against the state. Id. at ¶ 6-7. Because this decision was announced on April 21, 2005, McFadden had approximately seven weeks from the date of the decision to file a claim within the two-year limitations period.

{¶ 6} The court of appeals relied on McCoy to affirm the judgment of the Court of Claims. "We believe McCoy more accurately reflects the law applicable to appellant's claim. Therefore, we reiterate the holding from McCoy that the two-year statute of limitations in R.C. 2743.16 applies to claims such as appellant's that seek monetary damages for discrimination against the state. To the extent that we did not explicitly overrule Senegal in our decision in McCoy, we do so now." McFadden v. Cleveland State Univ., Franklin App. No. 06AP-638, 2007-Ohio-298, 2007 WL 184828, ¶ 10 ("McFadden I").

{¶ 7} McFadden filed an application for reconsideration. He argued that the court of appeals decision was invalid because it resolved an intradistrict conflict without an en banc proceeding. McFadden cited In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, paragraph two of the syllabus, wherein we stated, "Appellate courts are duty-bound to resolve conflicts within their respective appellate districts through en banc proceedings."

{¶ 8} The court of appeals denied McFadden's application for reconsideration. It held that en banc proceedings violated Section 3(A), Article IV of the Ohio Constitution. McFadden v. Cleveland State Univ., 170 Ohio App.3d 142, 2007-Ohio-939, 866 N.E.2d 82, ¶ 8 ("McFadden II"). The court also attempted to distinguish these circumstances from those in In re J.J. by noting the difference in time between conflicting decisions (the conflicting decisions in In re J.J. were released on the same day, but over 11 years had elapsed between Senegal and McCoy) and suggested that an en banc proceeding would be moot in this case because five of the eight judges in the district had already ruled in favor of a two-year statute of limitations. Id. at ¶ 9-10.

{¶ 9} We accepted McFadden's discretionary appeal from the denial of his application for reconsideration. 115 Ohio St.3d 1445, 2007-Ohio-5567, 875 N.E.2d 104.

III

{¶ 10} This case presents the issue of whether en banc proceedings are constitutional. En banc is defined as "[w]ith all judges present and participating; in full court." Black's Law Dictionary (8th Ed.2004) 568. In an en banc proceeding, all appellate judges in a specific district convene to resolve an intradistrict conflict on a point of law so that the disputed issue may be conclusively settled in that district. In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, ¶ 20. En banc proceedings are well established in American jurisprudence; the United States Supreme Court has recognized and approved of them in the federal system, and at least 19 other states use some form of en banc review. See Textile Mills Securities Corp. v. Commr. of Internal Revenue (1941), 314 U.S. 326, 333-335, 62 S.Ct. 272, 86 L.Ed. 249; John B. Oakley, Comparative Analysis of Alternative Plans for the Divisional Organization of the Ninth Circuit (2000-2001), 34 U.C.Davis L.Rev. 483, 538-540. As stated previously, en banc proceedings are established in Ohio as well: "Appellate courts are duty-bound to resolve conflicts within their respective appellate districts through en banc proceedings." In re J.J. at paragraph two of the syllabus.

{¶ 11} The court of appeals nonetheless refused to convene en banc to resolve the statute of limitations issue in this case, holding that such proceedings violate Section 3(A), Article IV of the Ohio Constitution. McFadden II, 170 Ohio App.3d 142, 2007-Ohio-939, 866 N.E.2d 82, ¶ 8.

{¶ 12} Section 3(A), Article IV of the Ohio Constitution states: "The state shall be divided by law into compact appellate districts in each of which there shall be a court of appeals consisting of three judges. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposition of each case." The court of appeals held that en banc proceedings are unconstitutional because en banc review would result in panels of more than three judges. McFadden II at ¶ 8.

{¶ 13} We disagree with the court of appeals. The historical background of Section 3(A), Article IV of the Ohio Constitution reveals that the number "three" in the provision is essentially a quorum requirement related to the makeup of appellate panels in the 19th century. "The modern courts of appeals in Ohio can trace their origin to the Constitutional Convention of 1851. The district courts were, at times, composed of two of the common pleas judges of the respective districts and one of the Supreme Court judges, any three of whom formed a quorum. * * * Thus, the limits were largely imposed by limitations on the size of the judiciary at the time, rather than on a predetermined formula to involve only three judges in a decision." State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d 1281, ¶ 53, fn. 8 (Gallagher, J., concurring in part, dissenting in part), citing F.R. Aumann, The Development of the Judicial System of Ohio (1932), 41 J. of the Ohio Historical Soc. 195.

{¶ 14} We acknowledge the reasonable view of the dissent on this issue, but given the context in which Section 3(A) was adopted, we conclude that the words should be interpreted in order that they do not prohibit en banc judgments in courts of appeals. This quorum requirement does not function as a cap on the number of judges who may sit on a panel. While the plain language of Section 3(A), Article IV mandates that appellate cases shall be heard by at least three judges to ensure that each case is properly reviewed, it does not foreclose the possibility of larger panels in special circumstances. See also Textile Mills, 314 U.S. at 333-335, 62 S.Ct. 272, 86 L.Ed. 249 (stating that a similar statute should not be "taken too literally" and that sacrificing "literalness for common sense" is permissible when it "does no violence to the history" of the provision).

{¶ 15} The need to definitively and efficiently resolve intradistrict conflicts presents a special circumstance that warrants a larger appellate panel. Every court of appeals in this state is composed of at least four judges, but three-judge panels are convened to resolve cases. When different panels hear the same issue, diametrically different results are possible, as this case clearly shows. Compare Senegal, Franklin App. No. 93API08-1161, 1994 WL 73895, *3 with McCoy, 2005-Ohio-1848, 2005 WL 914664, ¶ 6-7. However, all court of appeals decisions are applicable precedent unless and until they are formally overruled. See S.Ct.R.Rep.Op. 4(B) ("All court of appeals opinions * * * may be cited as legal authority and weighted as deemed appropriate by the courts"). Thus, schisms have...