APPELLATE COURT PRACTICE

Supreme Court Complaints

By Terry W. Posey Jr., Esq. Foos Lentz & Posey LLP tposey@flp.law | 937.802.2397

Ait a certain level of experience, appellate practitioners begin to pick up on some aggravating outcomes at the Ohio Supreme Court. I do not mean probable things, like having your jurisdictional appeal rejected (which happens 95% of the time), or even losing an accepted case on the merits (that is usually a 50/50 shot).

At a recent DBA Appellate Practice Committee meeting, we debated the most annoying decisions by the Supreme Court that create a sense of frustration. By no means is anyone suggesting that the Court actually has the ability to do anything about these (or even should), but these things happen frequently enough to be complained about.

Dismissed as Improvidently Accepted

Smart appellate practitioners know that even though the Ohio Supreme Court accepted jurisdiction over your discretionary appeal and let your client go through briefing and oral argument, they may decide to dismiss the case anyway. Even smarter practitioners may seek to achieve this outcome if they were the appellee either by motion or arguing for it in your brief.

Pursuant to S.Ct.Prac.R. 7.10, when the Supreme Court “later finds” there is no issue worthy of review, it may” sua sponte dismiss the case as having been improvidently accepted.” Yes, you can go through all the effort of overcoming your five percent odds of acceptance, all the time and energy of briefing, all the stress and preparation of oral argument, to just have the case dismissed.

This happened seven times in 2020. Fourteen sets of counsel had their time and energy declared “unnecessary” by the Supreme Court because it could not find a constitutional question or question of great general interest important enough to issue an opinion.

I know, I know – at least one party still won. Their lower court decision still creates instructive and persuasive law, even if it is only binding in their individual appellate district, right?

Dismissed as Improvidently Accepted with Instructions

Only sometimes! There is even a worse form of being dismissed as improvidently accepted: being dismissed as “improvidently accepted with an order that the court of appeals’ opinion may not be cited as authority except by the parties inter se.” This means that one party won the case, but not in a way that should be relied upon by anyone else.

Three of the seven improvidently accepted dismissals in 2020 orphaned the lower court opinions with these orders (which can be an important reminder on why Shepardizing is important).

In this instance, the Supreme Court does not even explain why the case is only of interest to these parties – is it an unusual fact pattern? Has there been a change in the law that makes writing a substantive decision only of interest to these particular parties? Nobody knows.

A 4-3 Denial on Jurisdiction

We have already discussed that the Supreme Court only accepts jurisdictional appeals about 5% of the time. There are seven justices, and there must be four votes for acceptance.

The justices usually vote in unanimous blocs. However, when they split 4-3 in favor of denying jurisdiction, it is one of the worst feelings in the world for an appellate practitioner. I should know – it happened to me twice in one year.

Once in a blue moon (or if the law regarding your issue has been continuing to evolve while the jurisdictional decision was pending), a motion for reconsideration can sway that last justice into your column. Otherwise, you remain one single vote away from unlocking the keys to further appellate review, and the lower court decision remains undisturbed.

Not Paying Close Enough Attention to the Mandate

Actually, this one is usually the fault of the practitioner. You win at the court of appeals, but the intermediate court only addressed one of the three reasons you were supposed to win (most likely because the other two were mooted because of the first holding). The other side prevails at the Supreme Court reversing the court of appeals on that issue. The Supreme Court then ends its opinion with a mandate returning the case to the trial court to proceed.

Wait! You had two more issues for the intermediate court of appeals to review. The Supreme Court sometimes pays a little too close attention to the relief requested by each party. If the appellant asks for a remand to the trial court, and you only asked for the court of appeals to be affirmed (not acknowledging the possibility of your loss), the Supreme Court’s mandate may eliminate your rights to review of the mooted arguments. Even reconsideration may not save you here.

Best practices suggest that you swallow your pride, and in the conclusion of your brief acknowledge that if the lower court is reversed, there are still undecided legal issues for it to consider, and that the mandate should address this by sending it to the lower appellate court, not the trial court.

Have any of these happened to you? Is there something we missed? Come commiserate with your fellow slightly-traumatized practitioners at the next Appellate Practice Committee meeting!