SUPREME COURT OF THE UNITED STATES
JIM YOVINO, FRESNO COUNTY SUPERINTENDENT OF SCHOOLS v. AILEEN RIZO
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 18–272. Decided February 25, 2019
Per Curiam.
The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued?
A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date.[1] In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). 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.
- ↑ In Altera Corp. v. Commissioner, 2018 WL 3542989 (CA9, July 24, 2018), decided four months after Judge Reinhardt died, his vote was initially counted as one of the two judges in the majority. A footnote in the opinion stated: “Judge Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death.” Id., at *1, n. **. Later, however, the court vacated the opinion and issued an order reconstituting the panel. Altera Corp. v. Commissioner, 898 F. 3d 1266 (CA9 2018). No similar action was taken in this case.
