Opinion
No. 81-588
Decided February 3, 1982.
Court of Appeals — Judgment vacated, when — Majority necessary for disposition — Constitutional requirement not met.
APPEAL from the Court of Appeals for Hamilton County.
Bertold J. Pembaur, appellee herein, was convicted of the offense of obstructing official business in violation of R.C. 2921.31. The appellee appealed his conviction by timely filing a notice of appeal. On November 12, 1980, the cause was argued before the Court of Appeals, with Judge Gilbert Bettman presiding.
In December 1980, Judge Bettman submitted his resignation from the Court of Appeals, effective January 3, 1981. On December 30, 1980, he was sworn in as a judge of the Court of Common Pleas for a term to commence on January 4, 1981. The vacancy thus created on the Court of Appeals was filled by the installation of a new judge on January 5, 1981.
On February 18, 1981, the Court of Appeals rendered a split decision purporting to reverse appellee's conviction. The opinion bears a notation that Judge Bettman "concurred in the foregoing decision prior to his resignation from the Court."
The state filed an application for reconsideration asserting that the judgment of reversal was invalid in that Judge Bettman had no legal power to participate in the disposition of the case as he was not a judge of the Court of Appeals on the date the decision and judgment entry was rendered. The application for reconsideration was overruled.
The cause is before this court pursuant to the allowance of a motion for leave to appeal.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Leonard Kirschner, Mr. William E. Breyer and Mr. Bruce Garry, for appellant.
Messerman Messerman Co., L.P.A., and Mr. Gerald A. Messerman, for appellee.
Section 3 of Article IV of the Ohio Constitution provides, in part:
"(A) 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. * * * In districts having additional judges, three judges shall participate in the hearing and disposition of each case. * * *
"* * *
"[B](3) A majority of the judges hearing the cause shall be necessary to render a judgment. * * *"
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 appellee'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.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.