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Can an Appellate Judge’s Vote Count After Death or Retirement?

Suppose an appellate judge casts the deciding vote in a case, creating a majority in support of the lead opinion.  Before the opinion is released, however, the judge retires or dies.  Does his or her vote still count?

In federal court, no.  In a North Carolina appellate court, yes.

In Yovino v. Rizo, issued today, the United States Supreme Court considered this question for the first time.  In this Equal Pay Act case, a prominent Ninth Circuit judge had authored the decisive opinion for an en banc court.  But between the time the judge finalized and voted in favor of his opinion and the time it was issued, he died.

A per curiam and unanimous Supreme Court held that his vote didn’t count.  The judge could still have changed his mind, the Court reasoned.  And his vote mattered–there was no clear majority without it.  So the en banc opinion had to be vacated.  With a hyperbolic flare, the Court declared:

[F]ederal judges are appointed for life, not for eternity.

Such a case would probably turn out differently in North Carolina.  Our courts routinely allow judges’ votes to count even after they have retired or left office.  In election years, for instance, it is common for a batch of opinions to be issued early in January in which the departing judge is noted to have “concurred in this opinion prior to 31 December” of the prior year.

Most of the time, the departing judge does not cast the deciding vote.  That is, it would make no practical difference if the departing judge’s vote didn’t count, because the lead opinion would still command a majority.  The United States Supreme Court recognized as much in Yovino, noting a longstanding practice of allowing two judges to constitute a quorum for purposes of a panel ruling when the third judge was no longer available.  But see N.C. Gen. Stat. 7A-16 (“[T]here judges shall constitute a quorum for the transaction of the business of the court when sitting in panels of three judges . . . .”).

Sometimes, though, the departing state appellate judge’s vote would make a difference.  Take the 2017 North Carolina Court of Appeals decision in US Chemical Storage v. Berto Construction.  In that case, Judge Calabria wrote the majority opinion, in which Judge McCullough joined.  Judge Inman wrote an opinion concurring in part and dissenting in part.  Judge McCullough resigned between the date he joined the opinion and the date it was issued.  In our state system, the case was considered to have been resolved by a 2-1 vote.  Applying the Yovino rule, however, the case would have resulted in a 1-1 tie, at least on the issue that formed the basis of the dissent.

Take home lesson:  Federal judges may be appointed for life, but their power abruptly ends afterwards.  Our state judges, on the other hand, can apparently exercise the judicial power of the State even after they have donned the robe for the last time.

–Matt Leerberg

 

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One Response to "Can an Appellate Judge’s Vote Count After Death or Retirement?"

  • Beth Scherer
    February 25, 2019 - 5:00 pm Reply

    Now that we have an answer from the feds, I am pondering a few theoretical points as to the State court practice.

    * Do our state appellate courts draw a distinction between concurring in an opinion before it is released–as opposed to concurring in the results before the opinion is written and/or finalized?

    * Given that a dissent in the Court of Appeals gives a party the right to further appellate review in the Supreme Court, can prejudice be shown even when a 3-0 decision because the retiring judge could have changed his/her mind?

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