More on Belton, Aalim, and disqualifications

In an earlier post I promised more on Belton, Aalim, and related issues. In particular, I want to discuss how the Court, and in particular new Justices Patrick Fischer and Pat DeWine, are handling some unusual procedural issues.

As I wrote earlier, the Court accepted Belton and held it for determination of State v. Aalim. Aalim was decided by a 4-3 vote in late December 2016, with the majority holding that the mandatory transfer scheme of juveniles to adult courts was unconstitutional as violative of due process and equal protection. The majority decision was authored by Justice Judith Ann Lanzinger and joined by Justice Paul Pfeiffer--both of whom have since retired. They have of course been replaced on the Court by Justices Fischer and DeWine. The State in Aalim is evidently hoping that the new justices will join the three Aalim dissenters (Justices O'Donnell, Kennedy, and French) and reverse the earlier ruling.

Aalim thus presents the interesting procedural wrinkle of the propriety of the new justices reconsidering a decision issued just before their arrival. We already know, of course, that newcomer Justice DeWine has no problem with doing so, and that Justice Fischer's position (same link) is somewhat more complicated. I admit myself to being persuaded by Justice DeWine's concurrence State v. Gonzales ("A case wrongly decided in late December 2016 is still a case wrongly decided" and deserving of correction) though I have no opinion on whether Aalim was in fact wrongly decided.

If the current members of the Court determine that Aalim was wrongly decided, then Belton will be vacated and remanded, but Belton also has an additional wrinkle that Aalim (and Gonzales) do not--it was a First District case. Justices Fischer and DeWine, of course, sat on the First District until earlier this year, creating potential conflicts of interest.

It is not clear to me precisely how the new justices are determining whether or not they should participate in cases before the Supreme Court, and in fact it now appears that they each may be following a different set of guidelines.

At first it appeared that they may be recusing themselves from all First District decisions, but that has proven to be incorrect. Then it appeared that they may be recusing only from decisions in which they were a member of the First District panel (see, for example, State v. Pleatman, in which both justices were on the panel and both recused) but that also does not appear to be right--neither Justice Fischer nor Justice DeWine were on the Belton panel in the court of appeals, and yet today's orders list indicates that Justice Fischer did not participate in the consideration of Belton, whereas Justice DeWine dissented from accepting the case.

Perhaps, then, Justice DeWine is not participating in cases in which he was on the panel, and Justice Fischer is not participating in any First District cases. Once again, that does not seem to be quite right either. For example, in State v. Clark, Justice DeWine was on the panel below and of course did not participate in the Court's consideration of the case. But there is no indication that Justice Fischer, who was not on the panel below, declined to participate in the Court's consideration of the case. Meanwhile Brickstone Properties, LLC v. Epps was another case in which Justice DeWine was on the First District panel and Justice Fischer was not--but this time they both did not participate in the Court's decision to decline the case. (Disclosure: I represented the appellee in Epps.)

It's also possible that the rules each justice is following have changed over time; they longer they are absent from the court of appeals, the less need there may be for them to decline to participate in a case in which they were not on the panel.

Time will tell how this shakes out, I suppose, but meanwhile let's keep an eye on First District cases like Belton. On these closely divided reconsideration cases, it is theoretically possible that the new justices will join a new majority and overrule decisions issued late in 2016--but then not be available to decide similar cases coming out of the First District. However unlikely that may seem, there is no obvious constitutional reason that this could not happen. To be sure, accepting a case on its merits for decision after full briefing would be the best course of conduct. But under Article IV of the Ohio Constitution, four justices constitutes a quorum, and a quorum can take any action that the full Court could take. Would a five-member Court consisting of three justices who would have been in the 2016 majority but the 2017 minority decide those cases? We'll have to wait and see.