Written by:  David Karl Gross

The United States Supreme Court recently decided the issue of whether a deceased judge has the right to issue an official decision.  In Yovino v. Rizo, the Ninth Circuit Court of Appeals grappled with an issue related to the Equal Pay Act of 1963.  This issue was first decided by a three-judge panel, but then expanded to a full panel of 11 judges.  In order for the court to establish binding precedent, at least six judges needed to agree.

As it turns out, through varying concurring opinions, six judges did agree.  Judge Stephen Reinhardt, one of the six concurring judges, wrote the majority opinion.  Judge Reinhardt finished the opinion, officially filed it with the clerk, and was waiting for the official publication of the decision.  It would appear that the matter was final and that no further discussions were taking place.  Sadly, Judge Reinhardt passed away on March 29, 2018, eleven days before the opinion was actually published.  Therefore, at the time Judge Reinhardt’s majority opinion was issued by the Ninth Circuit, he was deceased.

The issue of whether Judge Reinhardt’s vote counted was critical to the outcome of the case. If Judge Reinhardt’s vote counted, there would be 6 of 11 judges in favor of the same outcome, and with a majority, the decision becomes precedential.  If Judge Reinhardt’s vote did not count, there would be a 5-to-5 tie and the decision would have no precedential value. The Ninth Circuit decided that Judge Reinhardt’s vote counted and added a footnote to the decision indicating that Reinhardt was deceased but that he “fully participated in the case” and that the opinion was final “prior to his death.”  The issue was appealed to the United States Supreme Court.

The Supreme Court issued a per curiam decision discussing the historical treatment of deceased judges.  The court pointed out that a judge has until the final publication of a decision to change his mind; therefore, the decision is not actually final until publication.  With this, Judge Reinhardt’s decision, and his vote, was not final until the decision was actually published on April 9, 2018.  Because Judge Reinhardt died before publication, his vote should not have counted, meaning that the Ninth Circuit’s decision in Yovino v. Rizo has no precedential value.  The court pointed out that “federal judges are appointed for life, not for eternity,” meaning that their authority as a judge ends at the moment their life ends.