Yovino v. Rizo

A Ninth Circuit judge, the Honorable Stephen Reinhardt, died on March 29, 2018. The court listed Judge Reinhardt as the author of an en banc decision issued on April 9, 2018. Counting his vote made Judge Reinhardt’s opinion a majority opinion that constitutes a precedent that all future Ninth Circuit panels must follow. Without Judge Reinhardt’s vote, the opinion would have been approved by only five of the 10 members of the en banc panel who were still living when the decision was filed; those five concurred in the judgment for different reasons. The Ninth Circuit indicated that the majority opinion and all concurrences were final, and voting was completed before his death. The Supreme Court vacated, noting that a judge generally may change his position up to the moment when a decision is released. When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge; by statute, 28 U.S.C. 46, he was without power to participate in the en banc court’s decision at the time it was rendered. The Ninth Circuit “effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.” View "Yovino v. Rizo" on Justia Law