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November 2016 – 95th Anniversary of the first opinion from the Ninth District Court of Appeals

November 11, 2016, marks the 95th anniversary of the first opinion issued by the Ninth District Court of Appeals.

Courts of appeals have been around since the Ohio Constitution was adopted in 1851.  At that time, the five district courts included one Ohio Supreme Court justice and the common pleas judges within the jurisdiction of the district.  About 30 years later, constitutional amendments replaced the district courts with circuit courts, with circuit court judges elected to serve on each circuit.  The General Assembly enacted legislation to establish seven circuits with three judges on each.  About 30 years after that, further constitutional amendments changed the circuit name to courts of appeal and the General Assembly divided the state into appellate districts separated along county lines.

In 1921, the General Assembly adopted legislation to designate Cuyahoga County as the Eighth District.  That legislation also created a new Ninth District consisting of Lorain, Medina, and Summit Counties, from the former Eighth District, and Wayne County, from the Fifth District.  Although there have been other changes since then, including the creation of the Tenth, Eleventh, and Twelfth Districts, the Ninth District’s geographic composition has not changed in the 95 years since it was created.  The only change has been the addition of two judges in the 1980s, bringing the Ninth District to its current five judges.

I recently had the need to look back at an old opinion, and I found the Court’s first book of opinions.  The first opinion was released on November 11, 1921.  Actually, the first nine opinions were released on that day.  The most noticeable difference is that the opinions were all typed on blue-line paper, and the opinions are carbon-copies, not originals.  The format of the opinions is similar to what you would see today.  The issues are not much different, either.

The first opinion, from Brown v. Heintz, 9th Dist. Summit No. 507 (Nov. 11, 1921), involved “an action for a real estate commission.”  Id. at 1.  The other eight opinions released 95 years ago included issues like specific performance of a real estate contract, adverse possession, breach of contract, crimes, and domestic relations.

The facts of some of those cases are a little different.  One of the appeals involved a contract to build a house at a cost of $6,800.  There were two criminal cases in the first nine; both of them involved convictions for possession of intoxicating liquor.  In a civil case, a doctor sued a husband for wife’s medical bills.  The Court of Appeals reversed the judgment for the doctor, holding that because the parties were separated, and there was no evidence that the separation was the fault of the husband, the husband was not responsible for his wife’s bills.

Some things may also seem familiar.  In one case, the Court concluded that it had to presume regularity because the record was not complete.  In another, the Court dismissed an appeal because it concluded the order appealed was not a judgment and, therefore, the Court could not review it.

The last of those first nine cases shows how much, and little, 95 years has changed disputes that are heard by the Courts.  The plaintiff alleged that she was injured “through the negligent and careless operation of an automobile” driven by the defendant’s employee.  She claimed that the defendant drove “at an excessive and unlawful rate of speed” and was acting in the scope of employment.  Although you could find cases with similar allegations today, the rate of speed involved in current cases is different.  The evidence introduced during the trial was that the driver operated the vehicle in excess of 20 miles per hour.  According to the opinion, operating a vehicle above 15 miles per hour in the city, or 20 miles per hour outside the city, was presumptive evidence that the vehicle was operated unreasonably.  The Court concluded that the jury instructions were erroneous, reversed the judgment, and remanded for further proceedings.

The decisions in the weeks that followed those first opinions released on November 11, 1921, revealed a couple of interesting things.  The appellee in one of the cases, involving real property, was “H.J. Firestone.”  This was also the first opinion from Medina County for the new Ninth District Court of Appeals.  The first decision from Lorain County involved a challenge to the sale of bonds to build a new school house.  Wayne County’s first opinion from the Ninth District Court of Appeals came from a case involving a collision between an automobile and a horse that was part of a team pulling a wagon.

There was one other early decision that highlighted how things have changed.  In a criminal case, the opinion recounted that the defendant killed his wife on March 29, 1921, was indicted in April, had counsel appointed in May, had a sanity hearing in June, followed immediately by his trial.  After the trial, he was found guilty and sentenced to death.  The Court affirmed his conviction and sentence on December 12, 1921.  The opinion ordered his execution to take place on March 24, 1922, less than one year after he murdered his wife.

If you would like to learn more about the history of Ohio’s appellate districts, the 2001 Appellate District Study Committee Final Report is an excellent resource (from which the information at the beginning of this post was taken).

 

August 2016 – Guest Wi-Fi Network at Court's Main Office in Akron

Thanks to an Ohio Supreme Court Technology Grant, the Ninth District Court of Appeals purchased new computer network equipment.  One of the reasons for the upgrade was to allow the Court to create a guest Wi-Fi network for attorneys and parties who are visiting the Court of Appeals. 

On your wireless device, look for a network called NINTH GUEST.  When you select that network, you will be asked to enter a password.  The password will change periodically and it will be posted in the lobby at the Court.  After you enter the password, you must accept the terms of the Disclaimer in order to connect to the guest Wi-Fi network.

 

July 2016Return of Frequently Asked Questions

Over the last few months, we have heard some of the same questions asked fairly regularly, so this seemed like a good opportunity to post another list of frequently asked questions and answers.

Do I file everything in Akron?

No, you do not file anything with the Court's main office in Akron.  Local Rule 1.1.

You should file the Notice of Appeal with the clerk of the court where the case originated.  All future appellate filings should be made with the Appellate Clerk of Court’s office for the county in which the appeal originated.  Local Rule 1.1.  There are some filings that should still be made with the clerk of the trial court because the trial court continues to be responsible for some decisions.  These motions would include a motion to stay, which should be made first to the trial court, even though the appeal is pending (App.R. 7(A) and App.R. 8(B)), and a motion to extend the time to file the record, which the trial court may do once after the notice of appeal has been filed (App.R. 10(C) and Local Rule 5(D)).

For example, if you want to appeal from a decision of a municipal court, you would file your notice of appeal with the clerk of courts for the municipal court.  All future appellate filings should be made with the appellate clerk for the County Clerk of Courts in the county where the municipal court is located, but a motion to stay the trial court's judgment should first be made in the trial court, so that motion would be filed with the clerk of the municipal court.

You should not mail or otherwise deliver your documents to the Court’s main office in Akron, because they are not considered filed and they may not be forwarded to the proper clerks’ office.  Local Rule 1.1.

I mailed my motion to the clerk’s office.  When is it considered filed?

Pleadings are not filed until received by the proper clerk of court. The Ohio Rules of Appellate Procedure provide one exception.  The brief on the merits of the appeal is deemed filed when mailed.  App.R. 13(A).

How do I know when my brief is due?  Will I receive a briefing schedule?

The briefs are due according to the schedule provided in App.R. 18(A).  The Court will generally not issue a briefing schedule, except in cases with a cross-appeal, when a briefing schedule may be issued to assist in organizing the briefs and responses.

Can I get more time to file my brief?

Local Rule 18 explains how a party can receive an extension of time to file a brief on the merits (the rule does not apply to extensions of time to file responses to motions or court orders, only the briefs on the merits).

The first extension of time is by a certification for extension.  This provides the party an automatic 20-day extension of time to file the brief on the merits (or 10 days if the case involves the termination of parental rights).  A party may request a second extension of time by motion.  The motion must demonstrate extraordinary circumstances. 

Local Rule 18 specifically provides that the first extension is by certification and a second extension may be obtained by motion.  The Rule also provides that no certification may be filed for a reply brief and, therefore, it is not possible to seek an extension of time to file a reply brief.

 

February 2016 – One Year Anniversary of Recording Oral Arguments

At the end of January, the Court marked the one-year anniversary of recording oral arguments and posting them on YouTube.  I wanted to share some information with you about the last year.

As of the one-year anniversary, the Court had posted just over 300 oral argument videos.  Those videos had been watched almost 10,000 times around the world.  Over 52,000 minutes (or 870 hours, or 36 days) have been spent watching oral argument videos.

I mentioned that the videos have been watched around the world.  The top ten countries where the videos have been watched are:

1.  United States

2.  Canada

3.  United Kingdom

4.  Australia

5.  New Zealand

6.  South Africa

7.  France

8.  Trinidad & Tobago

9.  Ireland

10.  Philippines

I found other interesting statistics.  There were only five days last year that an oral argument video was not watched  Four of those days were Sundays.  The fifth day was Memorial Day, the only holiday that no videos were watched.  The last day that a video was not watched was August 23, 2015.

YouTube also tracks how much of a video people watch.  In some countries, viewers watch more of a video than in others.  The countries where people watched the greatest percentage of a video were:

1.  Costa Rica

2.  South Korea

3.  Cyprus

4.  Jamaica

5.  Ireland

As we start year two, we already have four videos posted.  Those videos have already been watched 60 times.  During the first week of year two, there have been over 360 oral argument views for almost 1,900 minutes.

If you have any suggestions, please send them to video@ninth.courts.state.oh.us.

 

November 2015 – Back to Blogging and More

There have not been updates for the last few months because of technical problems with updating the website.  Those issues have now been resolved.

This seems like a good opportunity to provide an update about the Court's video oral argument program.  It is easy to see how far we have come by comparing these numbers with the statistics in the last blog entry from April 2015.

Through early November, there have been just over 8,800 views of the Court's approximately 260 oral argument videos.  Viewers have spent over 46,000 minutes watching these videos.  That is the equivalent of about 773 hours, or, about 32 consecutive days watching videos.

The videos have been viewed primarily, but not only, in the United States.  The viewers have watched in almost 80 countries around the world, from Argentina to Zimbabwe.

We will post another update early next year to show our status on our one-year anniversary.  Thanks for watching!

April 2015 – Update on Video Recording Oral Arguments

The Court has been video recording oral arguments for just over two months now.  The Ohio Supreme Court, through Court News Ohio, just posted a story providing more information about our program, which you can read here.

I want to share some statistics from the first two months of this program.  The oral argument videos are hosted on YouTube, which provides interesting statistics about the number of views and where people are watching the videos.

As of March 31, 2015, the Court had uploaded 73 oral argument videos.  Those videos had been viewed almost 1,300 times.  Just over 100 hours had been spent watching the recorded oral arguments.

The videos have been viewed in eight countries:  Australia, Brazil, Canada, Dominican Republic, Germany, Malaysia, and Spain.  About three-quarters of the views have been on a computer and one-quarter have been on a tablet or smart phone.

We are always looking for ways to improve the program.  If you have any suggestions, please send them to video@ninth.courts.state.oh.us.

January 2015 – Video Recording Oral Arguments

At the end of January, the Court began a pilot program to video record oral arguments.  You can visit the Court's new video page by clicking here.

The Court adopted a standing order as a first step toward eventually adopting a local rule.  During the pilot program phase, we hope to identify problems that can be addressed in a local rule later this year.

I would expect that we will have some technology issues to work through.  The most significant will likely be sound quality, something I continue to tinker with to improve the volume of the judges and advocates without highlighting the background noise to a distracting level.  Another issue will be equipment problems.  During a recent oral argument, for example, the first minute of one argument was missed because of an equipment issue.

I would welcome your comments and suggestions on this program.  You can send them to video@ninth.courts.state.oh.us.

January 2015 – Judge Carla Moore will receive the Judicial Pioneer Award from the Akron Bar Association

Judge Carla Moore will receive the Judicial Pioneer Award at the Akron Bar Association Judicial Pioneer Sidebar on Thursday, January 22, 2015.  The event takes place between 5:00 and 7:00 p.m.  The Judicial Pioneer Award honors a person who is the first of his or her race, gender, or cultural heritage to hold a judicial position.

For more information, and to RSVP, you can visit the Akron Bar Association website by clicking here.

April 3, 2014 – More CLEs and other activities

Judge Eve Belfance, Judge Jennifer Hensal, and Judge Beth Whitmore taught at a CLE for the Wayne County Bar Association in March 2014.  I also had the opportunity to present and it was a pleasure to talk with a good size group of attorneys interested in appellate practice.

I will also be presenting a one-hour lunch-time CLE for the Medina County Bar Association on April 8, 2014.  During that presentation, the three judges who will be hearing oral argument that day, Judge Donna Carr, Judge Jennifer Hensal, and Judge Beth Whitmore, will also appear after they finish the day's oral arguments.

We plan to do the same thing a few weeks later in Lorain County for the Lorain County Bar Association.  I will be presenting a one-hour lunch-time CLE on April 22, 2014.  Judge Eve Belfance, Judge Donna Carr, and Judge Jennifer Hensal, plan to join the program after they are finished hearing oral arguments.

On April 28, 2014, the Court will hear one oral argument as part of the Annual Street Law Summit at Quaker Station.  Judge Eve Belfance, Judge Donna Carr, and Judge Jennifer Hensal, will hear the oral argument and then answer questions from the students at the conclusion of the case.

May brings more CLE opportunities.  I will be talking about the importance of preserving the record for appeal to the Ohio Association of Magistrates on May 1, 2014.  On May 9, 2014, Judge Eve Belfance, Judge Donna Carr, Judge Jennifer Hensal, Judge Carla Moore, and Judge Beth Whitmore, will present an Afternoon with the Court of Appeals at the Akron Bar Association.

November 22, 2013 – A busy fall of teaching

The judges scheduled a busy fall by teaching multiple continuing legal education courses.  Judge Donna Carr began the courses by teaching at an Ohio Courts of Appeals Judges Association course about the use of interpreters in the courts.  Later, Judges Eve Belfance and Beth Whitmore taught at the Akron Bar Association's Basic Appellate Law CLE.  Judges Eve Belfance, Donna Carr, and Beth Whitmore joined Ohio Supreme Court Justice Judith French on a panel at the Akron Bar Association's Advanced Appellate Law CLE.  Judges Eve Belfance, Donna Carr, Jennifer Hensal, Carla Moore, and Beth Whitmore taught at an appellate CLE seminar for the Lorain County Bar Association earlier this month.  To complete the long list of courses, Judges Belfance, Hensal, and Moore will speak at an appellate CLE in Cleveland in early December.

All five judges plan to speak at an Akron Bar Association CLE next spring, but more about that later.

September 13, 2013 – Helpful tips from the clerk of courts

While preparing for an upcoming CLE, I asked one of the appellate clerks about anything helpful I could share with appellate lawyers.  She offered several good tips, so I am sharing them here.

Documents you prepare for filing should be single-sided.  In the counties that scan documents, the "other" side of the document is lost because the scanner only captures one side of the document.  We see this issue often with affidavits of indigency and fee applications.

The clerks do not know when the Court will rule on a motion or set a case for oral argument.  Those are questions you can direct to the Court, but we may not be able to give you an answer either.

The clerks can help you figure out how many copies you need for filing.  If you are not sure, you can call ahead to make sure you have enough copies but not more than you need.

August 5, 2013 – The end of the Court App

The Court made an Android smartphone application available for several years.  Unfortunately, the app has been discontinued.  Because of changes to the app developer software, it has become difficult to update the app.  In addition, the security concerns caused by requiring users to accept apps from "unknown sources" to use the Court App have become so great that they have outweighed the benefits of providing the Court App.  Thanks to all who tried it and the feedback that allowed us to improve it over the years.

Although the app is gone, the Court does have a mobile-friendly web page:  www.ninth.courts.state.oh.us/mobile.htm

July 12, 2013 – Proposed orders with Motions

We are often asked if a party who files a motion in the Ninth District Court of Appeals must also file a proposed order with the motion.  Although some appellate districts have this requirement, this Court does not ask or require parties to file a proposed order along with a motion.  The Court prepares orders for all motions.

July 3, 2013 – Ohio Supreme Court Writing Manual, second edition

The Ohio Supreme Court released a second edition of the Writing Manual on July 1, 2013. You can find it on the Ohio Supreme Court website here. A brief summary of the changes follows.

- Both the county and the district shall be included in citations to non-print published Ohio appellate opinions. In some multi-county districts, all of the counties use a uniform numbering system and the use of the district without the county resulted in the potential for numerous cases from the same district having the same citation. Following the first edition of the Manual, an unpublished case would be cited as State v. Smith, 9th Dist. No. 12CA0022, 2013-Ohio-2345, but under the second edition of the Manual, it would be cited as State v. Smith, 9th Dist. Wayne No. 12CA0022, 2013-Ohio-2345.

- The second edition of the Writing Manual also includes a method for citing appellate court opinions decided after July 1, 2012, that appear in the North Eastern Reporter. This date is significant because before that date, all opinions that were print published in both the North Eastern Reporter and the Ohio Official Reports, but after that date, the Ohio Official Reports does not include appellate court decisions.

- Finally, the section on references to juveniles was revised to conform to the July 1, 2012 amendments to Juv.R. 5. The Writing Manual now states that only initials shall be used.

The Writing Manual is binding on the Ohio Supreme Court, but other courts and lawyers are not required to follow it.  This Court's Local Rules require briefs to comply with the Ohio Supreme Court citation format only to the extent that, if available, a citation must include a webcite and paragraph number references.  This Court does not require parallel citations, so writers do not need to include Northeastern Reporter citations in briefs or motions.

The Writing Manual is available on the Ohio Supreme Court web site.  It is fully searchable, so if you have a citation question, after you open the PDF document, you can hit Ctrl-F to search for terms.  The index has also been revised to make it easier to find terms if you prefer to search that way.

June 28, 2013 – Ohio Supreme Court rule changes to take effect July 1, 2013

The Ohio Supreme Court announced that proposed changes to several court rules would take effect on July 1, 2013, unless the General Assembly takes action to stop the amendments.  There were a number of changes to the Ohio Rules of Appellate Procedure, including some of the following.

App.R. 3  - amended to clarify that a party seeking to defend a judgment on a ground other than that relied on by the trial court need not file a cross-assignment of error.  Other amendments to this Rule clarify the procedure for amending a notice of appeal.

App.R. 9 - amended to clarify that App.R. 9(C) or 9(D) statements are available only in limited circumstances in cases originally heard by a magistrate. The goal of the amendment is to make it clear that a party must file a transcript or affidavit along with objections to a magistrate’s decision to challenge factual findings, and that the failure to file a transcript or affidavit cannot be overcome by filing an App.R. 9(C) or 9(D) statement on appeal. 

App.R. 21 - amended to require that any additional authority be presented at least five days prior to oral argument unless there is good cause for later presentment. The rule contains an example of good cause – the authority is not created until less than five days before oral argument.

You can read all of the amendments in a Word document on the Ohio Supreme Court website here.

March 15, 2013 – Court News Ohio Story about the Ninth District Court of Appeals

Court News Ohio, a service of the Ohio Supreme Court, ran a story about the Ninth District Court of Appeals.  The story notes that the Ninth District is the first appellate court in the state to have an all-female bench.

You can read the story and watch the video by clicking on the picture.

December 28, 2012 – New Presiding and Administrative Judges

The Court selected Judge Carla Moore to serve as the Presiding Judge for 2013.  Judge Eve Belfance will serve as Administrative Judge in 2013.

July 25, 2012 – Judge Dickinson co-authors Ohio Trial Practice Handbook

Judge Clair Dickinson joined Judge Richard Markus as a co-author on the new edition of "Ohio Trial Practice."  The handbook provides Ohio's lawyers and judges with principles of Ohio trial law.  The handbook covers both procedural and substantive issues.  Judge Dickinson and Judge Markus are already working on update for next year.  More information is available from Court News Ohio here.

July 20, 2012 – Updates to the Local Rules

Today, the Court adopted the proposed amendments to the Local Rules for the Ninth District Court of Appeals.  As noted earlier, the amendments update the Local Rules to comply with recent changes to the Ohio Rules of Appellate Procedure and to eliminate redundant language.

The most significant changes are to Local Rule 8 and Local Rule 14.  The amendments to Local Rule 8 follow the amendment of App.R. 21 by providing that a party may request oral argument by indicating “ORAL ARGUMENT REQUESTED” on the cover of the brief-in-chief if the party wants to present oral argument.  The amendments to Local Rule 14 recognize the Supreme Court's amendment of Gov.Bar R. II to establish a procedure for pro hac vice status.

There were non-substantive changes made to the format of the Local Rules to make them easier to read.

July 2, 2012 – Updates to Ohio Rules of Appellate Procedure

The Ohio Supreme Court announced today that it has adopted amendments to a number of rules, including the Ohio Rules of Appellate Procedure.  The Court's list of amendments (available here as a Word document) provides an overview of the changes to all of the rules - the summary of the changes to the Appellate Rules follows:

App.R. 4

The amendment to App.R. 4 adds a reference to objections to a magistrate’s decision under Crim.R. 19 identical to provisions in App.R. 4(B)(2) for civil cases and juvenile cases. Additional time for the notice of appeal, where objections to a magistrate’s decision are pending, should be uniform for all appeals.

App.R. 10

Amendments to App.R. 10(B) clarify language to distinguish between the time when the record is complete and the time when the record is transmitted. The amendments also provide that the record is not complete, even after the time for preparing the record has expired if there is a pending motion to extend that time.

App.R. 13 and 14

The amendments to App.R.13 and App.R. 14 promote consistency with the 2012 amendments to the Ohio Rules of Civil Procedure. The amendments will allow service by electronic means and use of commercial carrier services. The amendments also extend the "three-day rule" to other service methods, e.g., commercial carrier services that do not provide same-day delivery to the recipient.

App.R. 16

The amendment to App.R. 16 revises division (E) of the rule to require attachment of only those authorities that are not available electronically. The materials in question are usually available electronically, and courts and most practitioners have easy access to the electronic versions. The unnecessary attachments are burdensome on both counsel and the court. [The Ninth District Local Rules further limits what may be attached to a brief.]

App.R. 21

The Commission on the Rules of Superintendence has requested that the Commission on the Rules of Practice and Procedure consider moving several rules currently in the Rules of Superintendence to the Rules of Practice and Procedure. This request comes as a product of an ongoing process of reorganizing the Rules of Superintendence. The amendment to App.R. 21 moves the requirement of identifying oral argument panels two weeks in advance currently in Sup.R. 36.1 to the Ohio Rules of Appellate Procedure.

App.R. 26

The amendment to App.R. 26 deletes language regarding sua sponte en banc consideration. The previous rule required the order designating the case for en banc consideration to vacate the original panel decision in order to stop the running of the time to appeal to the Supreme Court. The Court, however, amended S.Ct.Prac.R. 2.2 to toll the time for appeal to this Court during the pendency of a sua sponte en banc consideration. Therefore, the language in App.R. 26 is no longer necessary.

April 19, 2012 – Pro Se Guide Now Available

The Court has prepared a new Guide for litigants who appear pro se in the Court.  Over the last few years, there has been an increase in the number of cases with at least one pro se party.  To assist everybody with a case in this Court, this Guide provides an overview of the appellate process and includes forms that parties will need to use in their appeals.

The Pro Se Guide is available here.

April 5, 2012 – Proposed Amendments to the Local Rules

The Court has proposed amendments to the Local Rules.  You can see the proposed changes by clicking here (the link opens a PDF document). Text that appears underlined will be added to the Rules and text that appears with a strikethrough will be deleted from the Rules.

The proposed changes will update the Local Rules to comply with recent changes to the Ohio Rules of Appellate Procedure and to eliminate redundant language.

The most significant changes are to Local Rule 8 and Local Rule 14.  The amendments to Local Rule 8 follow the amendment of App.R. 21 by providing that a party may request oral argument by indicating “ORAL ARGUMENT REQUESTED” on the cover of the brief-in-chief if the party wants to present oral argument.  The amendments to Local Rule 14 recognize the Supreme Court's amendment of Gov.Bar R. II to establish a procedure for pro hac vice status.

The Court is interested in receiving feedback about the proposed amendments.  You can email comments no later than April 27, 2012, to comments@ninth.courts.state.oh.us.

February 2, 2012 – Another New Affidavit of Indigence Form

The Office of the Ohio Public Defender has announced that it will require the use of a newly revised affidavit of indigency form for all appointments made after April 1, 2012.  You can find more information on the Ohio Public Defender's website.  The new form is available here.  This updated form replaces the August 2011 update that became effective on January 1, 2012.

January 2012 – New Writing Manual

The Ohio Supreme Court adopted a new Writing Manual.  The Manual includes three sections - citation, style, and judicial opinion writing (full disclosure - I served on the Committee that drafted the Manual).

The Manual is only binding on the Ohio Supreme Court.  According to the Preface, the Court hopes that all Ohio courts and attorneys will find it helpful in brief and opinion writing.

You can find the Manual here.  I am sure you will find it to be a helpful resource to answer citation and style questions.

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