dissenting.
{¶ 23} I respectfully dissent and would affirm the decision of the Court of Appeals for Franklin County that denied McFadden’s application for reconsideration. The court of appeals followed McCoy v. Toledo Corr. Inst., Franklin App. No. 04AP-1098, 2005-Ohio-1848, 2005 WL 914664, and “specifically overruled” Senegal v. Ohio Dept. of Rehab. Corr. (Mar. 10, 1994), Franklin App. No. 93 API08-1161, 1994 WL 73895, an earlier case holding that a six-year, rather than two-year, statute of limitations applied to claims such as McFadden’s. McFadden v. Cleveland State Univ., 170 Ohio App.3d 142, 2007-Ohio-939, 866 N.E.2d 82, ¶ 3. Thus, the court of appeals has already resolved any intradistrict conflict. McFadden had no basis for a motion for reconsideration.
{¶ 24} In reversing and remanding for the court of appeals to determine whether to hold an en banc hearing, the majority concludes that an en banc proceeding is constitutional based on four points. First, it notes that federal courts and a minority of state courts1 use some form of en banc review. Second, it relies on paragraph two of the syllabus in In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851. Third, it adds words to Section 3(A), Article IV of the Ohio Constitution to contend that “three judges” states a quorum, instead of the defined number for a hearing panel on an appellate case. Fourth, it cites policy reasons to support an en banc procedure. Each of these points is debatable; cumulatively, they are unpersuasive.
The Constitution of Ohio, unlike the federal statute, does not provide for en banc hearings
{¶ 25} Since 1948, the federal circuit courts have been given specific power by statute to sit “in banc”2 for a hearing or rehearing. The United States Supreme Court has explained the history of the procedure in W. Pacific RR. Corp. v. W. Pacific RR. Co. (1953), 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986. In its current form, Section 46, Title 28, U.S.Code states:
*61{¶ 26} “(c) Cases and controversies shall be heard and determined by a court or panel of not more than three judges (except that the United States Court of Appeals for the Federal Circuit may sit in panels of more than three judges if its rules so provide), unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service * * *.
{¶ 27} “(d) A majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c), shall constitute a quorum.” (Emphasis added.)
{¶28} In contrast, Section 3(A), Article IV of the Ohio Constitution states: “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. Laws may be passed increasing the number of judges in any district wherein the volume of business may require such additional judge or judges. In districts having additional judges, three judges shall participate in the hearing and disposition of each case.” (Boldface and italics added.)
{¶ 29} Section 3(A), Article IV does not say “at least” three judges, contrary to the majority’s addition, and the word “quorum” does not appear. The Ohio Constitution mandates a definite number — that “three judges shall participate in the hearing and disposition of each case.” The majority cites Textile Mills Securities Corp. v. Commr. of Internal Revenue (1941), 314 U.S. 326, 333-335, 62 S.Ct. 272, 86 L.Ed. 249 (stating that a “similar statute” should not be “taken too literally” and that sacrificing “literalness for common sense” is permissible when it “does no violence to the history” of the provision). But Textile Mills is inapposite here.
{¶ 30} The statutes in Textile Mills created an anomaly because one statute specified that each federal circuit court of appeals “shall consist of three judges” (former Section 117, Title 28, U.S.Code), another statute provided that some circuits would have four judges (former Section 118, Title 28, U.S.Code), and no statute specified the number of judges who could hear and decide a case. Textile Mills, 314 U.S. at 328-332, 62 S.Ct. 272, 86 L.Ed. 249. See also State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d 1281, ¶ 77-79 (Karpinski, J., dissenting). But, as noted above, that anomaly does not exist in Ohio, since the Constitution specifies that “three judges shall participate in the hearing and disposition of each case.” Section 3(A), Article TV, Ohio Constitution. Additionally, unlike in Textile Mills, the reference here is not to a statute, but to the Ohio Constitution.
{¶ 31} In contrast to the majority’s expansion of Section 3(A), Article TV, the statutes providing for the makeup of the courts of appeals have been consistent *62with the mandate of Section 3(A) that “three judges shall participate in the hearing and disposition of each case” in the courts of appeals. For example, R.C. 2501.012 designates the number of judges in each court of appeals and when their terms of office begin and end. As one of the dissenting judges explained in State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d 1281, with respect to the statute as it related to the Eighth District Court of Appeals:
{¶ 32} “In 1959 the Ohio Constitution was amended to authorize the legislature to pass laws to increase the number of judges. Section 6, Article IV, Ohio Constitution. * * * In 1970, R.C. 2501.012 gave a general provision for districts with more than three judges: ‘In such districts, any three judges shall comprise the court of appeals in the hearing and disposition of cases * * (Emphasis added.)
{¶ 33} “ * * * This statute was repeatedly amended in 1976, 1980, 1984, 1986, and 1990. Each time, the legislature specifically addressed the particular district: ‘In the eighth district, any three judges shall comprise the court of appeals in the hearing and, disposition of cases * * (Emphasis added.) * * * Each time the number of judges changed, the legislature retained the sentence specifying the number of judges as three for comprising the panel to hear and dispose of a case.
{¶ 34} “Over the years, additional judges were also added to some of the other districts. With each change, the legislature retained the language specifying a three-judge panel. Currently, the statute specifies a three-judge panel and reiterates this for each specific district in which additional judges have been added. There is a separate and identical provision for nine different districts: R.C. 2501.012(A), (B), (C), (D), and (E) and 2501.013(A), (B), (C), and (D) — a total of nine specific provisions, each time reiterating that three judges will hear and dispose of a case.” Id. at ¶ 83-85 (Karpinski, J., dissenting).
{¶ 35} Similarly, R.C. 2501.012(C) provides, “In the tenth district, any three judges shall comprise the court of appeals in the hearing and disposition of cases in accordance with any local rules of practice and procedure that may be adopted by the judges of the court.” (Emphasis added.) These statutes do not suggest that the General Assembly viewed the constitutional command of Section 3(A), Article IV to mean that “at least three judges” of the court of appeals must hear and decide each case, but that, consistent with the constitutional text, “three judges” must do so.
In re J.J. is distinguishable and does not control the outcome here
{¶ 36} The second syllabus paragraph of In re J.J., 111 Ohio St.3d 205, 2006-Ohio-5484, 855 N.E.2d 851, is cited as having “established” en banc proceedings and also as “sufficient authorization” for them. Holding that “[ajppellate courts *63are duty-bound to resolve conflicts within their respective appellate districts through en bane proceedings,” J.J. dealt with a multijudge court with a local en banc rule in place and two different three-judge panels that had issued conflicting opinions on the same day. This court was not asked to determine the constitutionality of an en banc proceeding in J.J., and no analysis was offered to justify the court’s holding on that point.
{¶ 37} Furthermore, J.J. did not discuss the procedure that was to be used: What mechanics begin the process? Does a litigant have power to request an en banc hearing or rehearing, and how many judges must respond to the petition? Does the court have the power, sua sponte, to consider a case en banc? How many judges are required to overrule the three judges who initially heard the case? Is there an appeal from the exercise of the court’s discretion? The majority comments that the Supreme Court Commission on the Rules of Practice and Procedure is currently drafting a rule. That rule would, however, conflict with both the Ohio Constitution and R.C. 2501.012.
Policy reasons do not justify en banc proceedings
{¶ 38} Of the 12 appellate districts, only the Eighth and Fifth are mentioned as having different panels that have announced conflicting opinions within the same district on identical issues of law. That all courts of appeals’ opinions may be considered precedent unless and until they are formally overruled (see S.Ct. R. Rep.Op. 4(B)) does not mean that en banc is the only solution to the perceived problem. The Tenth District itself has adopted the general rule that “the most recent decision regarding [an] issue * * * is the deciding precedent.” Miller v. Lindsay-Green, Inc., Franklin App. No. 04AP-848, 2005-Ohio-6366, 2005 WL 3220215, ¶ 101. In addition, this court functions as the court of last resort in articulating what the law is, within a district as well as within the state. A majority of state supreme courts with intermediate appellate courts have the same function.
{¶ 39} Justice Jackson raised a note of caution when discussing en banc proceedings in federal courts: “Rehearings en banc are not appropriate where the effect is simply to interpose another review by an enlarged Court of Appeals between decision by a conventional three-judge court and petition to this Court. Delay, cost, and uncertainty, which take their toll of both the successful and the unsuccessful, the just and the unjust litigant, are each increased by an additional appeal to a hybrid intermediate court.” W. Pacific RR. Corp., 345 U.S. at 273, 73 S. Ct. 656, 97 L.Ed. 986 (Jackson, J., dissenting). Regardless of policy considerations, en banc proceedings are not authorized by either the Ohio Constitution or state statute.
*64There is no need for remand to the court of appeals
{¶ 40} Finally, in remanding the case to the court of appeals to determine “whether it should convene en banc to resolve the conflict,” the majority ignores this unanimous statement: “Between our decision in this case and the decision of the panel in McCoy, five of the eight sitting judges on this court have held that claims such as appellant’s are subject to the two-year statute of limitations set forth in R.C. 2743.16. There is no reason to believe that more formal en banc proceedings would produce a different result.” McFadden v. Cleveland State Univ., 170 Ohio App.3d 142, 2007-Ohio-939, 866 N.E.2d 82, ¶ 10. Thus, the three-judge court that participated in the hearing and disposition of this case has already determined that there is no conflict requiring an en bane hearing. Furthermore, the Tenth District Court of Appeals has no local rule providing for an en bane procedure. And there is no guidance from this court as to how an en banc process should be implemented.
{¶ 41} Because any rule would conflict with the Ohio Constitution, I dissent and would affirm the decision of the court of appeals in every respect.
Cupp, J., concurs in the foregoing opinion.. Only 18 states use en banc proceedings, according to John B. Oakley, Comparative Analysis of Alternative Plans for the Divisional Organization of the Ninth Circuit (2000 — 2001), 34 U.C.Davis L.Rev. 483. (One other state, New Jersey, provides for review by an expanded panel consisting of one additional judge. Id. at 534-537.) Thirteen of the 40 intermediate appellate courts are, like Ohio, divided into geographical districts with essentially separate courts. In only Texas and Florida are there district en banc proceedings. Id. at 514-515.
. Although the federal statute uses the term “in banc,” the more common term is “en banc.”