Law.com - Dead Judges Voting: When Does Life Tenure End?

Law.com - Dead Judges Voting: When Does Life Tenure End?

The day after Senior Circuit Judge Max Rosenn died Feb. 7 at the age of 96, following more than 35 years of exemplary service on the 3rd U.S. Circuit Court of Appeals, that court issued a decision by a divided three–judge panel in which Rosenn cast the deciding vote. What, if anything, is wrong with this picture?

Death is a fate that no human being -- not even federal appellate judges -- can avoid. Therefore, it is surprising that no uniform approach has emerged from either the federal appellate courts or from Congress concerning whether a deceased judge is entitled to cast the deciding vote in support of an appellate court's judgment.

In the 3rd Circuit, apparently a dead judge is entitled to cast the deciding vote in support of that court's judgment. The 3rd Circuit entered its judgment in Monteiro v. City of Elizabeth on Feb. 8. Voting to affirm was Circuit Judge Dolores K. Sloviter. Voting to reverse was Circuit Judge D. Michael Fisher. Because Rosenn had voted to affirm before he died, and in fact had drafted what issued as the court's majority opinion on the day after his death, his vote combined, with Sloviter's, led the 3rd Circuit to enter a precedential judgment of affirmance even though among the living on the day judgment was entered the panel was evenly divided.

Although I have not undertaken the difficult task of locating every other instance in which a judge has, after dying, nevertheless been allowed to cast the deciding vote in support of a federal appellate court's judgment, my research has disclosed that the 3rd Circuit is not alone in its approach.

For example, in Hillsdale College v. Department of HEW, 696 F.2d 418 (6th Cir. 1982), Senior Circuit Judge Lester L. Cecil was counted as having voted with the majority on a divided three–judge panel even though he had died 20 days before the 6th Circuit's opinion issued. And in Association of Nat'l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979), Circuit Judge Harold Leventhal's vote in support of the result that the majority on a partially–divided three–judge D.C. Circuit panel had reached was counted even though he had died more than a month before the decision issued.

These judges must be from Chicago where dead people are allowed to vote often and early!