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February 26, 2019

A judge's vote in an unannounced opinion held not to survive his or her death


A judge's vote in an unannounced opinion held not to survive his or her death
Rizo v Yovino, 586 U. S. ____ (2019) [No. 18–272. Decided February 25, 2019]

Chief Judge of the United States Court Appeals for the Ninth Circuit Stephen Reinhardt wrote the court's en banc opinion in Rizo v Yovino

Judge Reinhardt, however, died on March 29, 2018 while the court's decision in the matter was not announced until April 9, 2018. A posthumous footnote in the opinion notes that "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

By counting Judge Reinhardt’s vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, thereby constituting a precedent that all future Ninth Circuit panels must follow.

The U.S. Supreme Court vacated the ruling, holding that should a judge vote and then die before the decision is announced, his or her vote with respect to the decision "does not count," explaining that a judge may change his or her position up to the moment when a decision is released.

Noting that "[w]ithout Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed," the Supreme Court ruled that:

1. "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority; and

2. "That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death; and

3. "... federal judges are appointed for life, not for eternity."

The court granted the then pending petition for certiorari, vacated the Ninth Circuit's decision in Rizo v Yovino and remand the case "for further proceedings consistent with this opinion."  

The decision is posted on the Internet at:


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