Skip to comments.Q Anon: 02/24/19 Trust Trump's Plan
Posted on 02/24/2019 10:00:16 PM PST by ransomnote
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SUPREME COURT OF THE UNITED
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. 18272. Decided February 25, 2019
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.* 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 Reinhardts vote, the court deemed Judge
Reinhardts 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 Reinhardts
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.
Although the other five living judges concurred in the
judgment, they did so for different reasons. The upshot is
that Judge Reinhardts vote made a difference. Was that
Aileen Rizo, an employee of the Fresno County Office of
Education, brought suit against the superintendent of
schools, claiming, among other things, that the county was
violating the Equal Pay Act of 1963, 77 Stat. 5657, 29
U. S. C. §206(d). The District Court denied the countys
motion for summary judgment, and the Ninth Circuit
granted the countys petition for interlocutory review. A
three-judge panel of the Ninth Circuit vacated the decision
of the District Court based on a prior Ninth Circuit decision, Kouba v. Allstate Ins. Co., 691 F. 2d 873 (1982), that the panel believed it was compelled to follow. 887 F. 3d 453, 459 (2018) (en banc). The court then granted en banc review to clarify the law, including the vitality and effect of Kouba. Ibid. Like other courts of appeals, the Ninth Circuit takes the position that a panel decision like that in Kouba can be overruled only by a decision of the en banc court or this Court, see Naruto v. Slater, 888 F. 3d 418, 421 (2018), and therefore a clear purpose of the en banc decision issued on April 9 was to announce a new binding Ninth Circuit interpretation of the Equal Pay Act issue previously addressed by Kouba. The opinion authored by Judge Reinhardt and issued 11 days after his death purports to do that, but its status as a majority opinion of the en banc court depends on counting Judge Reinhardts vote.
The opinions issued by the en banc Ninth Circuit state
that they were Filed April 9, 2018, and they were entered
on the courts docket on that date. A footnote at the
beginning of the en banc opinion states:
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. 887 F. 3d, at 455, n. *. II
The Ninth Circuit did not expressly explain why it
concluded that it could count Judge Reinhardts opinion as
[t]he majority opinion even though it was not endorsed
by a majority of the living judges at the time of issuance,
but the justification suggested by the footnote noted above
is that the votes and opinions in the en banc case were
inalterably fixed at least 12 days prior to the date on
which the decision was filed, entered on the docket, and
released to the public. This justification is inconsistent
with well-established judicial practice, federal statutory
law, and judicial precedent.
As for judicial practice, we are not aware of any 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.
We endorsed this rule in United States v. AmericanForeign
S. S. Corp., 363 U. S. 685 (1960), which interpreted
an earlier version of 28 U. S. C. §46(c), the statutory provision authorizing the courts of appeals to hear cases en banc. The current version of this provision permits a
circuit to adopt a rule allowing a senior circuit judge to sit on an en banc case under certain circumstances, but at the time of our decision in American-Foreign S. S. Corp., this was not allowed. Instead, only active judges could sit en banc. See 28 U. S. C. §46(c) (1958 ed.).
In American-Foreign S. S. Corp., Judge Harold Medina
was one of the five active judges on the Second Circuit
when the court granted a petition for rehearing en banc.
After briefing was complete but before an opinion issued, Judge Medina took senior status. When the en banc court
issued its decision, the majority opinion was joined by
Judge Medina and two active Circuit Judges; the two
other active Circuit Judges dissented. We vacated the
judgment and remanded the case, holding that [a]n active
judge is a judge who has not retired from regular
active service, and [a] case or controversy is determined
when it is decided. 363 U. S., at 688. Because
Judge Medina was not in regular active service when the
opinion issued, he was without power to participate in
the en banc decision. Id., at 687, 691; cf., id., at 691692
(Harlan, J., dissenting).
Our holding in American-Foreign S. S. Corp. applies
with equal if not greater force here. When the Ninth
Circuit issued its opinion in this case, Judge Reinhardt
was neither an active judge nor a senior judge. For that
reason, by statute he was without power to participate in
the en banc courts decision at the time it was rendered.
In addition to §46(c), §46(d) also shows that what the
Ninth Circuit did here was unlawful. That provision
A majority of the number of judges authorized to constitute
a court or panel thereof, as provided in paragraph
(c), shall constitute a quorum.
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
appealprovided, of course, that they agree. 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. See, e.g., United .... 47 (CA2 1994); Singh v. Ashcroft, 121 Fed. Appx. 471, 472, n. (CA3 2005); ASW Allstate Painting & Constr. Co. v. Lexington Ins. Co., 188 F. 3d 307, 309, n. (CA5 1999); Clark v. Metropolitan Life Ins. Co., 67 F. 3d 299, n. ** (CA6 1995); Kulumani v. Blue Cross Blue Shield Assn, 224 F. 3d 681, 683, n. ** (CA7 2000). See also Nguyen v. United States, 539 U. S. 69, 82 (2003) ([S]ettled law permits a quorum to proceed to judgment when one member of the panel dies or is disqualified.). With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardts death but subsequently withdrawn, see supra,
at 1 n., 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.
* * *
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. That practice 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.
We therefore grant the petition for certiorari, vacate the
judgment of the United States Court of Appeals for the
Ninth Circuit, and remand the case for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE SOTOMAYOR concurs in the judgment.
That is very interesting. A good thing, I think? Not a law fag.
Always assure that the Qwind is to your back
No new Q posts but, POTUS is tweeting!
Why does Justice Ginsburg come to mind upon reading this?
Highly respected Senator Richard Burr, head of Senate Intelligence, said, after interviewing over 200 witnesses and studying over 2 million pages of documents, WE HAVE FOUND NO COLLUSION BETWEEN THE TRUMP CAMPAIGN AND RUSSIA. The Witch Hunt, so bad for our Country, must end!
It is very good and very good precedent with regards to the potential demise of [RBG] ... Though it means until there’s an official death certificate she can rule ‘forever’ ;)
Be nice if Spike Lee could read his notes, or better yet not have to use notes at all, when doing his racist hit on your President, who has done more for African Americans (Criminal Justice Reform, Lowest Unemployment numbers in History, Tax Cuts,etc.) than almost any other Pres!
I pray POTUS has someone watching her.
Pope is busted.
A few days ago, according to insider sources to Sarah W. Three of the priest from the group that governs Vatican have “relieved” pope of responsibilities-he’s to be a figure head from now on.
How about you stop trying to boss people.
Why are you calling them "newcomers and skeptics"? That's not what they are, and you know it. So why lie?
And I've about had it with you bad-mouthing this thread and the people on it and advising people on other threads not to participate here..
If this thread isn't good enough for others, why do you keep posting here?
You got a personality problem. Keep it to yourself.
Ain't nobody got time for that.
I saw something the other day, saying Francis should never have been a Pope in the first place as he is a Jesuit. Don’t know if that is true. I am now a fallen away Catholic. I will keep my own counsel with God from here on out.
The Curia would have to invoke Article 322 of Canon Law to remove him or diminish his powers. That couldn't be done in secret.
Oil prices getting too high. OPEC, please relax and take it easy. World cannot take a price hike - fragile!
Yes, I had read that several places about Jesuits not supposed to be pope. My belief is that a lot of the churches have been compromised. Especially through the World Councils and the 501C3.
Preachers keep their mouth shut about politics to avoid loosing the 501c3 status. Modern day 30 pieces of silver-
I ordered a study bible and I use the internet for study and music on Saturdays for “church” and during the week for study. I don’t recall who said it, but there was a prediction out there that people would move to study at home.
I know ? I never liked this Pope, so I never researched him. The horse was already out of the barn for me when he was elected. His election was the final straw I guess.
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