Multiple Circuits Let Dead Judges Vote in Cases

April 16, 2018, 2:58 PM

A recent en banc Ninth Circuit decision isn’t the only example of deceased judges voting, a federal appellate practitioner told Bloomberg Law.

The decision by U.S. Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt, who died unexpectedly March 29, held that a California school system’s pay structure violated a federal law aimed at reducing the gender pay gap.

The Third Circuit has also “issued decisions that counted the votes of judges” who weren’t alive when the court issued an opinion, appellate attorney Howard Bashmanof Willow Grove, Pa., told Bloomberg Law by telephone.

That court allowed a deceased judge to cast the deciding vote in a 2006 decision, Monteiro v. City of Elizabeth, as did the Sixth Circuit in a 1982 decision, Hillsdale Coll. v. Dep’t of Health, Educ. & Welfare, Bashman noted in a February 2006 Law.com article, “Dead Judges Voting: When Does Life Tenure End?”

The D.C. Circuit decided not to allow “a deceased judge to cast the deciding vote” in a 1986 decision, Greenberg v. FDA, Bashman wrote.

A deceased judge’s vote shouldn’t be counted because that judge is no longer a member of their court, Bashman told Bloomberg Law. He’s called for the courts or Congress to put a uniform policy in place to that effect.

It’s less troubling in cases where the deceased judge’s vote isn’t the deciding factor, he told Bloomberg Law.

But Reinhardt’s vote was a deciding vote, Bashman said.

Five of the 11 judges sitting en banc wrote or joined concurrences saying they agreed with the majority’s result but disagreed with its rationale.

Reinhardt’s vote is therefore the deciding vote for the precedent that the majority opinion establishes, Bashman said.

It’s strange that the Ninth Circuit would count a deceased judge’s vote but not count the vote of a judge who retires before a decision is issued, such as former Judge Alex Kozinski, Bashman said. Kozinski retired following allegations of sexual misconduct.

Kozinski voted in numerous cases that have yet to be decided when he stepped down, Bashman said. Yet it’s “pretty clear” that he’s just “Mr. Kozinski” rather than “Judge Kozinski.”

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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