I.O.P. 12: Procedures When Judges Become Unavailable

12.1 If a judge assigned to a panel becomes unavailable for any reason, the chief judge in his or her discretion will decide whether to reconstitute the panel by naming a substitute. Unavailability includes, but is not limited to, necessity to recuse, disability, resignation, or death. If the chief judge is recused, the active judge next in precedence will act. A written order is not necessary for the reconstitution of any panel. Generally, the chief judge will exercise his or her discretion in the following manner:

(a) If after distribution of the briefs, but before the disposition date, a member of a panel becomes unavailable, the judge, or one of the remaining panel members, informs the chief judge. The chief judge will usually name a substitute and reconstitute the panel. The substituted judge on any panel is open to opinion assignments on the same basis as original panel members.

(b) If a member of a panel becomes unavailable after the disposition date but before the opinion is filed with the clerk, the two remaining judges will inform the chief judge of the status of the case, e.g. whether the remaining members of the panel agree on the disposition of the case, and whether an opinion has been drafted. The chief judge in his or her discretion will decide whether to reconstitute the panel by naming a substitute. A case may be decided without naming a substitute judge if the remaining judges agree as to disposition.

(c) If the author of an opinion becomes unavailable while the opinion is circulating to the panel or to the full court, ordinarily the opinion will be reassigned to one of the remaining panel members if they are in agreement. If the remaining panel members are not in agreement, the chief judge will name a substitute judge and reconstitute the panel.

(d) If the author of an opinion or member of the panel becomes unavailable after transmission of the opinion to the clerk, but before the opinion is filed, the chief judge may direct that the opinion be filed listing the unavailable judge on the coram, provided neither of the remaining judges has authored a concurrence or dissent. Ordinarily the opinion will be filed as a per curiam opinion but the chief judge may in his or her discretion direct that the opinion be filed with the unavailable judge listed as author. The clerk will note on the opinion that it was received in the clerk's office before the panel member became unavailable.

12.2 Judges who leave the court should endeavor to insure that opinions they have authored are circulated, approved, and filed before their departure.