On February 25, 2019 the Supreme Court of the United States (SCOTUS) rendered an interesting decision in Yovino, Fresno County Superintendent of Schools v. Rizo, 586 U.S. ____ (2019); No. 18–272. I can already hear the grumpy old men in the balcony ("what does this have to do with workers' compensation?"). Carry on good reader, I assure you the relevance will eventually resonate.
In Yovino, the Ninth Circuit Court of Appeals issued a en banc decision on April 9, 2018. The author was Judge Stephen Reinhardt. The issue, however, was that Judge Reinhardt passed away on March 29, 2018. Thus, eleven days after his demise the judge rendered a decision. The SCOTUS noted that by "counting Judge Reinhart's vote, the court deemed Judge Reinhardt's opinion to be a majority opinion." The effect of that is the opinion would be "a precedent that all future Ninth Circuit panels must follow." If his vote were not counted, the opinion was something less - approved by "only 5 of the 10 members of the en banc (sic) panel."
In Yovino, the Ninth Circuit Court of Appeals issued a en banc decision on April 9, 2018. The author was Judge Stephen Reinhardt. The issue, however, was that Judge Reinhardt passed away on March 29, 2018. Thus, eleven days after his demise the judge rendered a decision. The SCOTUS noted that by "counting Judge Reinhart's vote, the court deemed Judge Reinhardt's opinion to be a majority opinion." The effect of that is the opinion would be "a precedent that all future Ninth Circuit panels must follow." If his vote were not counted, the opinion was something less - approved by "only 5 of the 10 members of the en banc (sic) panel."
The Court was not making it up. A footnote was added to the opinion that read:
“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 (sic) court prior to his death.”
The SCOTUS noted, however, that at least one other case the Court had published an opinion similarly counting Judge Reinhardt's vote. Altera Corp. v. Commissioner, 2018 WL 3542989 (CA9, July 24,
2018). In that instance, however, the Court later "vacated the opinion and issued an
order reconstituting the panel." Thus, in any event, one might conclude that the Ninth Circuit in Yovino had not been consistent with its own actions in Altera.
The SCOTUS noted that the judge's decisions are not immutable prior to public release. Instead, "a
judge may change his or her position up to the very moment when a decision is released." There is authority cited in the opinion for the conclusion that “[a] case or controversy is ‘determined’ when it is decided.” That means when the decision is released to the public. Most judges would admit that they have changed their minds about some decision at some point during their tenure.
The SCOTUS concluded that the Ninth Circuit erred when it counted the vote of a judge who passed away prior to the publication of the decision. It reminded that:
"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."For many, the implications of this on workers' compensation will be obvious. There is every potential that a workers' compensation adjudicator can pass away unexpectedly. In fact, when Yovino came to my attention, I recalled recently hearing of just such an occurrence in a workers' compensation case in Connecticut, Quinones v. R.W. Thompson Company, Inc, --- A.3d ----, 188 Conn.App. 93 (App. Ct. Conn., 2019).
In Quinones, there was a dispute over the volume of benefits due, and an attempt by the employer/carrier to "discontinue the benefits it was paying the plaintiff." The commissioner approved that. The plaintiff then filed a motion seeking to alter that outcome, and a formal hearing was held. Before an order was issued thereon, however, the commissioner passed away. Therefore, the case was assigned to "a substitute commissioner."
The parties were offered "a hearing de novo (new trial) or (to) request the commission to assign a substitute commissioner to decide the case upon review of the original record." The "plaintiff objected to a" new trial and urged instead that "a decision should be rendered upon review of the record." The defense had no objection to that process.
The newly assigned commissioner, however, scheduled a hearing. The plaintiff objected, but the new commissioner "held a formal hearing." Following the hearing, the commissioner denied the plaintiff's motion to alter the decision allowing benefits to be halted. The Plaintiff appealed claiming the commissioner erred in rejecting "an alleged stipulation" regarding deciding the case on the record without another trial.
The appellate court disagreed that there was a stipulation. Though there was correspondence between the attorneys, these "did not constitute a contract" between the parties. Furthermore, the Court held that even if there had been a contract, "it would not have prohibited (the new commissioner) from opening the record." The Court held that "it was fully within (the new commissioner's) power and authority" to convene the hearing and to take evidence.
There is authority supporting that accepting stipulations is appropriate. This is perceived as "minimizing litigation" and "expediting the resolution of disputes." See Citrus World v. Mullins, 704 So. 2d 128 (Fla. 1st DCA 1997). However, a judge "should not accept a stipulation" if "the evidence is at variance with the stipulation." White v. State, 134 So. 2d 1134 (Fla. 1st DCA 2014); Buttrick v. By the Sea Resorts, Inc., 108 So. 3d 658 (Fla. 1st DCA 2013). Furthermore, the trial judge has responsibility regarding the procedure. Therefore, the trial judge may not necessarily be bound by a procedural stipulation of the parties. See e.g. Rodas v. Commercial Forming Corp., 976 So. 2d 620 (Fla 1st DCA 2008).
Thus, when trial concludes, it is in the best interest of all involved that a lucid and complete trial order is issued as expeditiously as practical. The Judge may well have made a decision, even communicated that decision. However, until that order is issued, each side faces the potential exposure of the time and money that would be required to try the case again. The Supreme Court's analysis in Yovino will remind everyone of the peril that a judicial disablement might cause. Parties should strive to reach a conclusion, with the entry of a written order.
Courts have reached similar results: Farner v. Farner, 480 N.E. 2d 251 (In. Ct. App. 1st 1985)(Indiana); Christy v. Christy, 556 S.E. 2d 701 (So. Car. 2001)(South Carolina); Christopher v. Nelson, 213 N.W. 2d 867 (Mich. Ct. App, Div. 3, 1973)(Michigan); Matter of Cassity's Estate, 656 P.2d (UT 1982)(Utah); DGHI, Enterprises v. Pacific Cities, Inc., 977 P. 2d 1231 (WA 1999)(Washington). These various states may allow the consideration of the trial record or the holding of a new trial. There is not consensus as to which is preferable.
In the end, the best practice is an order entered immediately following the trial. That provides finality and clarity and affords any party the opportunity to seek an appellate review if she/he/it believes that to be appropriate. Because, while "federal judges are appointed for life," workers' compensation judges are not. Thus, the assigned judge might change with little or no notice. A judge can elect to retire. During my tenure, I have seen judges fall unexpectedly ill. And, an order of recusal or disqualification would mean a newly assigned judge and perhaps a reconsideration of prior rulings or decisions. See If It Is MOOT, What Does It Matter.