Motions for reconsideration are not supposed to be a re-hash of arguments already made and lost. In fact, the Supreme Court of Ohio has a rule on that which says, “A motion for reconsideration shall not constitute a re-argument of the case.” When I was on the court of appeals, that’s what most of them were.

But a different question that arises in this context is should a judge participate in ruling on a motion for reconsideration on a case she did not hear?

For the intermediate courts of appeals, there is a rule. Appellate Rule 26(A)(1)(c) states “the application for reconsideration shall be considered by the panel that issued the original decision.”

But at the Supreme Court of Ohio level, there is no comparable rule.  I suggest there should be.  The issue was put under the spotlight when Justices Pat DeWine and Pat Fischer first joined the Court in January of 2017.

Justices Judy Lanzinger and Paul Pfeifer had to retire because of their ages at the end of 2016.  A flurry of decisions were released at year’s end. Two in particular were noteworthy: State v. Gonzales,  2016-Ohio-8319, (Gonzales I), which was released  December 23, 2016, and State v. Aalim (Aalim I), 2016-Ohio-8278, which was released December 22, 2016. Both were controversial. One dealt with cocaine penalties, the other with the mandatory transfer of certain juveniles to adult court.  A party has ten days to file a motion for reconsideration.  In each case the state waited the full ten, and filed its reconsideration motions January 3, 2017, after Justices Lanzinger and Pfeifer had been replaced by Justices Fischer and DeWine. The two new justices disagreed about whether they should rule on these motions.

In State v. Gonzales,  2017-Ohio-777, (Gonzales II), Justice DeWine wrote,

“A case wrongly decided in late December 2016 is still a case wrongly decided…Far better for the administration of justice in Ohio to correct that erroneous holding now than to put off the task for a future case.”

Justice Fischer wrote,

“Recognizing that I was not privy to the previous court’s deliberations and respecting the precedent established by that court’s decisions, I have voted to deny all motions asking this court to reconsider decisions issued before I took my seat on the bench.” Justice Fischer also wrote that if a majority did grant reconsideration, he would participate in deciding the merits of the new case, which he then did. In both these examples Justice DeWine’s vote to grant reconsideration was outcome determinative; reconsideration was granted in both cases, and then both Gonzales I and Aalim I were reversed.

Why bring this up now? I was a paid consultant on the case of Capital Care Network of Toledo v. Dept. of Health, Slip Opinion No. 2018-Ohio-440. Capital Care filed for reconsideration because of a new development in the case the court was asked to consider. I have been watching for a decision on the motion for reconsideration filed by Capital Care in that case. The motion was denied unanimously on April 25, 2018.  Justice Mary DeGenaro, who was not on the court when the case was argued or decided, participated in denying the motion. I do not mean to single out Justice DeGenaro—she did nothing improper, and I’m sure what she did was simply routine–but I don’t think that it should be.

The Capital Care merit decision was released February 6. Justice Genaro had been sworn in by then, but was not on the court when the case was argued or decided. Her predecessor, Justice Bill O’Neill, not she, heard the oral argument, participated in the case deliberations and the merit decision.

I think a bright line rule from the high court is in order. I propose one that says that a justice should not rule on a reconsideration motion in a case she has not heard and deliberated on—Justice Fischer’s position in Gonzales and Aalim. Justice DeGenaro’s reconsideration vote clearly didn’t matter in Capital Care, but Justice DeWine’s very much mattered in Aalim and Gonzales. If this bright-line rule results in a tie vote on reconsideration, then the previous ruling stands.  In an exceptional case, re-argument could be ordered.

Just food for thought.