U.S. Supreme Court Rules that the Vote of a Deceased Judge in Federal Court does not Count

On February 25, 2019, the United States Supreme Court had to decide whether a federal court could lawfully count the vote of a judge who died before a decision was issued.  Yovino v. Rizo, No. 18-272 (February 25, 2019).  The Supreme Court held that the U.S. Court of Appeals for the Ninth Circuit erred when it counted the vote of Judge Reinhardt who died prior to the opinion being filed.

Aileen Rizo brought a case against her employer, the Fresno County Office of Education, on the grounds that the county was violating the Equal Pay Act of 1963.  Ms. Rizo claimed she was paid less than her male counterparts for performing the same job.  The county justified the pay disparity by factoring in issues such as salary history.  When the case was initially brought before the Ninth Circuit, the court held that the employer’s reliance on prior history salary was lawful because this factor had nothing to do with sex.  Ms. Rizo then petitioned for an en banc review by the Ninth Circuit, which was granted.  After the en banc review, the Ninth Circuit reversed its prior opinion, holding that prior salary history may not be considered to justify pay disparity.

Eleven days before the decision was issued, on March 29, 2018, Judge Reinhardt passed away.  Prior to his death, Judge Reinhardt participated in and authored the opinion.  All votes on the decision were final prior to his death.  When the opinion was issued on April 9, 2018, Judge Reinhardt was listed as the author of the decision and his vote was counted in the majority opinion.  Without Judge Reinhardt’s vote, the opinion would have been approved by only five out of ten members of the en banc panel.

The county petitioned for review by the Supreme Court.  The petition was granted and the U.S. Supreme Court reversed the Ninth Circuit’s opinion.  The Supreme Court ruled that the Ninth Circuit erred when it issued a decision that relied on the participation of a judge who had died before the decision was issued.  The Court reasoned that judges’ votes were not set in stone before they were released to the public.  Judges could change their positions in the eleventh hour.  Further, there is no rule or precedent that locked in judges’ opinions or votes prior to being made public.  Thus, it was error for the Ninth Circuit to count a vote that had been cast by a judge prior to the filing date of a decision and its release to the public.

If you feel that your employer pays you less on account of your gender, race or ethnicity, please feel free to call Hunter Pyle Law for a free consultation at (510)-444-4400 or inquire@hunterpylelaw.com.