Proposed Amendments to the Rules of Practice

1 2 3 PROPOSED AMENDMENTS TO THE RULES OF PRACTICE 4 OF THE SUPREME COURT OF OHIO 5 6 7 8 Comments Requested: The Supreme Court of Ohio will accept public comment 9until April 6, 2010, on the following proposed amendments to the Rules of Practice of the 10Supreme Court of Ohio. Comments on the proposed amendments should be submitted in 11writing to: Justin Kudela, Case Management Counsel, Supreme Court of Ohio 65 South 12Front Street, 8th Floor, Columbus, Ohio 43215-3431, or [email protected] no 13later than April 6, 2010. Please include your full name and mailing address in any 14comments submitted by email. 15 16Key to Proposed Amendment: 17 181. Original language of the rule appears as regular typescript. 19 202. Language to be deleted appears thus. 21 223. Language to be added appears thus. 23 24 *** 25 26 PROPOSED AMENDMENTS TO THE RULES OF PRACTICE OF THE 27 SUPREME COURT OF OHIO 28 29 30 *** 31 32S.Ct. Prac. R. 2.2. Institution of Appeal from Court of Appeals. 33 34(A) Perfection of appeal 35 36 (1) (a) To perfect an appeal from a court of appeals to the Supreme Court, other 37 than in a certified conflict case, which is addressed in S.Ct. Prac. R. 4.1, the 38 appellant shall file a notice of appeal in the Supreme Court within forty-five 39 days from the entry of the judgment being appealed. The date the court of 40 appeals filed its judgment entry for journalization with its clerk, in accordance 41 with App. R. 22, shall be considered the date of entry of the judgment being 42 appealed. If the appeal is a claimed appeal of right or a discretionary appeal, 43 the appellant shall also file a memorandum in support of jurisdiction, in 44 accordance with S.Ct. Prac. R. 3.1, at the time the notice of appeal is filed. 45 46 (b) Except as provided in divisions (A)(2), (3), and (4), and (5) of this rule, 47 the time period designated in this rule for filing a notice of appeal and 48 memorandum in support of jurisdiction is mandatory, and the appellant’s 49 failure to file within this time period shall divest the Supreme Court of 50 jurisdiction to hear the appeal. The Clerk of the Supreme Court shall refuse to 51 file a notice of appeal or a memorandum in support of jurisdiction that is 52 received for filing after this time period has passed.

53 (2) (a) If a party timely files a notice of appeal in the Supreme Court, any other 54 party may file a notice of appeal or cross-appeal in the Supreme Court within 55 the later of the time prescribed by division (A)(1) of this rule or ten days after 56 the first notice of appeal was filed. 57 58 (b) A notice of appeal shall be designated and treated as a notice of cross- 59 appeal if it is filed both: 60 61 (i) After the original notice of appeal was filed in the case; 62 63 (ii) By a party against whom the original notice of appeal was filed. 64 65 (c) If a notice of cross-appeal is filed, a combined memorandum both in 66 response to appellant/cross-appellee’s memorandum and in support of 67 jurisdiction for the cross-appeal shall be filed by the deadline imposed in S.Ct. 68 Prac. R. 3.4. 69 70 (3) (a) In a claimed appeal of right or a discretionary appeal, if the appellant 71 intends to seek from the Supreme Court an immediate stay of the court of 72 appeals judgment that is being appealed, the appellant may file a notice of 73 appeal in the Supreme Court without an accompanying memorandum in 74 support of jurisdiction, provided both of the following conditions are satisfied: 75 76 (i) A motion for stay of the court of appeals judgment shall accompany 77 the notice of appeal. 78 79 (ii) A copy of the court of appeals opinion and judgment entry being 80 appealed shall be attached to the motion for stay. 81 82 (b) A memorandum in support of jurisdiction shall be filed no later than forty- 83 five days from the entry of the court of appeals judgment being appealed. The 84 Supreme Court will dismiss the appeal if the memorandum in support of 85 jurisdiction is not timely filed pursuant to this provision. 86 87 (4) (a) In a felony case, when the time has expired for filing a notice of appeal in 88 the Supreme Court, the appellant may seek to file a delayed appeal by filing a 89 motion for delayed appeal and a notice of appeal. The motion shall state the 90 date of entry of the judgment being appealed and the reasons for the delay. 91 Facts supporting the motion shall be set forth in an affidavit. A copy of the 92 court of appeals opinion and the judgment entry being appealed shall be 93 attached to the motion. 94 95 (b) A memorandum in support of jurisdiction shall not be filed at the time a 96 motion for delayed appeal is filed. If the Supreme Court grants a motion for 97 delayed appeal, the appellant shall file a memorandum in support of jurisdiction 98 within thirty days after the motion for delayed appeal is granted. If a 99 memorandum in support of jurisdiction is not timely filed after a motion for 100 delayed appeal has been granted, the Supreme Court will dismiss the appeal. 101 102 (c) The provision for delayed appeal does not apply to appeals involving 103 postconviction-relief or appeals brought pursuant to App. R. 26(B). The Clerk 104 shall refuse to file motions for delayed appeal involving postconviction-relief 105 or App. R. 26(B). 106 107 (5) (a) When a party timely files a motion for en banc review in the court of 108 appeals pursuant to App. R. 26(A)(2), the time for filing a notice of appeal 109 from the court of appeals opinion and judgment entry shall be tolled. 110 111 (b) If a motion for en banc review is filed in the court of appeals, and the 112 appellant seeks to appeal from the court of appeals opinion and judgment entry, 113 the appellant shall file a notice of appeal within forty-five days of the court of 114 appeals decision on the motion for en banc review. 115 116 (c) To file an appeal from the court of appeals opinion and judgment entry 117 after the court of appeals has ruled on a motion for en banc review, the 118 appellant shall comply with the timeframe imposed by S.Ct. Prac. R. 2.2(A)(5) 119 (b) and shall include the following: 120 121 (i) A notice of appeal that complies with the requirements of S.Ct. Prac. 122 R. 2.2(B), and that indicates both the date of the court of appeals decision 123 on the motion for en banc review, and the date of the court of appeals 124 opinion and judgment entry that is being appealed. 125 126 (ii) A memorandum in support of jurisdiction that complies with the 127 requirements of S.Ct. Prac. R. 3.1, and that has attached a date-stamped 128 copy of the court of appeals decision on the motion for en banc review. 129 130 131(B) Contents of notice of appeal 132 133 [See Appendix A for a sample notice of appeal from a court of appeals.] 134 135 (1) The notice of appeal shall state all of the following: 136 137 (a) The name of the court of appeals whose judgment is being appealed; 138 139 (b) The case name and number assigned to the case by the court of appeals; 140 141 (c) The date of the entry of the judgment being appealed; 142 143 (d) That one or more of the following are applicable: 144 145 (i) The case involves affirmance of the death penalty; 146 147 (ii) The case originated in the court of appeals; 148 149 (iii) The case raises a substantial constitutional question; 150 151 (iv) The case involves a felony; 152 153 (v) The case is one of public or great general interest; 154 155 (vi) The case involves termination of parental rights or adoption of a 156 minor child, or both; 157 158 (vii) The case is an appeal of a court of appeals determination under App. 159 R. 26(B). 160 161 (2) In an appeal of right under S.Ct. Prac. R. 2.1(A)(1), a date-stamped copy of the 162 court of appeals judgment entry that is being appealed shall be attached to the notice 163 of appeal. For purposes of this rule, a date-stamped copy of the court of appeals 164 judgment entry shall mean a copy bearing the file stamp of the clerk of the court of 165 appeals and reflecting the date the court of appeals filed its judgment entry for 166 journalization with its clerk under App. R. 22. If the opinion of the court of appeals 167 serves as its judgment entry, a date-stamped copy of the opinion shall be attached. 168 169 (3) In a discretionary appeal or claimed appeal of right, if a party has timely moved 170 the court of appeals to certify a conflict under App. R. 25, the notice of appeal shall 171 be accompanied by a notice of pending motion to certify a conflict, in accordance 172 with S.Ct. Prac. R. 4.4(A), that a motion to certify a conflict is pending with the 173 court of appeals. 174 175(C) Notice to the court of appeals 176 177The Clerk of the Supreme Court shall send a copy of any notice of appeal or cross-appeal 178to the clerk of the court of appeals whose judgment is being appealed. 179 180(D) Jurisdiction of court of appeals after appeal to Supreme Court is perfected 181 182 (1) After an appeal is perfected from a court of appeals to the Supreme Court, the 183 court of appeals is divested of jurisdiction, except to take action in aid of the appeal, 184 to rule on an application timely filed with the court of appeals pursuant to App. R. 185 26, or to rule on a motion to certify a conflict under Article IV, Section 3(B)(4) of 186 the Ohio Constitution. 187 188 (2) In all appeals from a court of appeals, the court of appeals retains jurisdiction to 189 appoint counsel to represent indigent parties before the Supreme Court where a 190 judgment of the court of appeals is being defended by a defendant or upon order of 191 the Supreme Court that counsel be appointed in a particular case. 192 193Effective Date: June 1, 1994 194Amended Effective: April 1, 1996; April 1, 2000; June 1, 2000; July 1, 2004; August 1, 2004; 195January 1, 2008; January 1, 2010; July 1, 2010. 196 197 Commentary 198Division (A)(5) was added to address an amendment to the Rules of Appellate Procedure that 199permit a party to file a motion for en banc review with a court of appeals. This division will toll the 200time for filing an appeal to the Ohio Supreme Court until the court of appeals rules on the motion 201for en banc review. 202 203 204