Justices Chastise 9th Circuit for Counting Dead Judge in Majority

WASHINGTON (CN) – Noting that “federal judges are appointed for life, not for eternity,” the Supreme Court vacated an opinion Monday where the Ninth Circuit counted the vote of U.S. Circuit Judge Stephen Reinhardt after his death. 

U.S. Circuit Judge Stephen Reinhardt listens to Sept. 8, 2014, arguments in San Francisco on gay marriage bans. Judge Reinhardt, a liberal stalwart on the U.S. Ninth Circuit Court of Appeals, died in Los Angeles on March 29, 2018. He was 87. (AP Photo/Jeff Chiu, Pool, File)

“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,” the unsigned opinion states. “That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death.”

In the underlying case, Fresno County Schools had been sued by Aileen Rizo, a female math consultant who said she was paid thousands of dollars less than three male colleagues to instruct the county’s math teachers, despite having more experience.

Employers are exempt from the Equal Pay Act if they can attribute a difference in pay to certain policy considerations, and Fresno argued that its pay structure fit the bill here. Implemented in 2004, the scale bases an incoming employee’s salary solely on salary history.

Rizo earned $62,133, the minimum starting salary for a management-level educator, including a 5 percent increase from her previous salary and a bonus for a master’s degree. 

Fresno Schools appealed to the Ninth Circuit after the District Court denied it summary judgment, and Steinhardt was part of an 11-judge panel that considered the case en banc in 2017.

A year later when the court affirmed the judgment against Fresno, the majority decision listed Judge Reinhardt as the lead author. He had died 11 days earlier. As noted in Tuesday’s ruling, “without 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 Ninth Circuit suggested in an accompanying footnote that it could count Judge Reinhardt’s decision as “the majority opinion” because the votes and opinions in the case had already been fixed for at least 12 days.

But the Supreme Court on Tuesday called “this justification … inconsistent with well-established judicial practice, federal statutory law, and judicial precedent.”

The justices also said they found no “rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release.”

“And it is generally understood that a judge may change his or her position up to the very moment when a decision is released,” the 5-page ruling continues.

For the Supreme Court, the provisions of Title 28 counsel against counting Judge Reinhardt’s vote as well.

“Under §46(c), a court of appeals case may be decided by a panel of three judges, and therefore on such a panel two judges constitute a quorum and are able to decide an appeal — provided, of course, that they agree,” the opinion states. “Invoking this rule, innumerable court of appeals decisions hold that when one of the judges on a three-judge panel dies, retires, or resigns after an appeal is argued or is submitted for decision without argument, the other two judges on the panel may issue a decision if they agree. With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt’s death but subsequently withdrawn, we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time.”

The Ninth Circuit must now reconsider the case.

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