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Can’t Be Saved by a New Judge

In Jezerinac v. Dioun, the Ohio Supreme Court considered the question of whether a new judge to the appellate bench may hear a motion for reconsideration when he or she was not a judge on the panel when the case was originally decided. The Court unanimously held that a departing judge may be replaced by a new judge on the panel that is reconsidering the matter.

This case stems from a Tenth District Court of Appeals case in which the court issued its decision, and the same day, one of the judges on the panel announced his resignation. Dioun, a party to the original case, sought reconsideration but argued the successor judge should not participate in the reconsideration. His argument was based on the language of App.R. 26(A)(1)(c) which requires that the “application for reconsideration shall be considered by the panel that issued the original decision.” Dioun argued that replacing any panel members creates a new panel separate and distinct from “the panel that issued the original decision.” 

The Ohio Supreme Court disagreed with Dioun’s arguments and held that the appellate rules allow a judge’s replacement when necessary. The Ohio Constitution requires that “three judges shall participate in the hearing and disposition of each case.” Ohio Constitution, Article IV, Section 3(A). The Court held that a motion for reconsideration is included in such constitutional requirement. Additionally, it is a longtime understanding of the judicial role that a “court’s identity is wholly independent from the specific individuals who make up its personnel” and that such principle is crucial to the continuity of the judiciary. The Court held that the panel remains “the panel that issued the original decision” within the remaining of App.R. 26(A)(1)(c) even when a judge from the original panel has been replaced.

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