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Critics Say 9th Circuit Is Too Big for the Job, Seek to Secede

June 27, 1989|KIM MURPHY | Times Staff Writer

In the days of the "circuit riders," when roaming appellate judges of the West dispensed justice in a makeshift courtroom and departed on the next stagecoach, it made no difference that the U.S. 9th Circuit Court of Appeals spanned all that was known of the American frontier.

But the frontier today runs from Arizona to Alaska, from Montana to Guam, and the nation's largest federal appeals court now passes judgment over a population of nearly 49 million.

The circuit spans nine states and 1.4 million square miles. Judges in Pasadena may decide whether a man is hanged in Helena; decisions on trade disputes in the Northern Mariana Islands are laid to rest in San Francisco; Phoenix jurists may be called to set limits on Eskimo fishing rights.

It has not made for judicial harmony. While the laws are universal, the context in which they are argued throughout the circuit can differ greatly: As new skyscrapers spring up along the Sunbelt, the Pacific Northwest is reeling through an economic recession. The environmental movement, a vigorous political force in Southern California, has of necessity taken a back seat to development of water and timber resources in Oregon, Washington and Idaho.

Increasingly, residents of the West's less-urbanized states are questioning whether jurists from California should sit in judgment on their futures--questions that have prompted a coalition of senators from the Northwest to mount a new move to divide the behemoth 9th Circuit.

"We in the Northwest are tired of being the tail on a huge dog," U.S. Sen. Slade Gorton (R-Wash.) said in introducing legislation last month with six other senators that would allow Washington, Alaska, Hawaii, Idaho, Montana, Oregon and the Pacific territories to secede from the 9th Circuit and form their own appeals court. California, Arizona and Nevada would remain.

"Northwestern states are simply dominated by California judges and California attitudes," Gorton asserted. "It is time to acknowledge that the Northwest has developed its own legal interests, and those interests cannot be fully addressed from a California perspective."

At issue for many of the judges of the court--who have opposed any move to divide the circuit--is the concept of a federal appeals court as a regional arbiter of federal law designed to be a step removed from regional disputes.

There are 13 federal circuit courts. They act as an intermediate step between lower federal district courts and the U.S. Supreme Court, ruling on constitutional appeals and resolving interpretations of the law that conflict from court to court. Judges are appointed by the President and serve for life.

"We are in fact the only national court left in the United States, other than the Supreme Court," said former Chief Judge James Browning. "We are the only court which within our boundaries is represented all the points of view, basically all the problems, social and economic, of the whole nation. That kind of court can make a very positive contribution to the development of the federal law at the national level."

Nonetheless, the secession movement has gained momentum, particularly in Oregon, where the 9th Circuit recently blocked sale of nearly 2 billion board feet of old-growth timber to protect the spotted owl, and in Montana and Washington, where the court has blocked the executions of at least three convicted killers.

Seattle residents flooded the court's San Francisco headquarters with phone calls and telegrams in March when the court stayed the execution of Charles Campbell, convicted of brutally attacking and murdering a woman who had accused him of raping her. Campbell, who was out on work release from prison for his conviction in the rape case, also slashed the throat of the woman's 8-year-old daughter and murdered a neighbor who happened by during the rampage. One telegram to the court talked about "anarchy prevailing."

Understanding of Issues

"Even though I recognize that judges can dispassionately make rulings, they nonetheless imprint upon their rulings an understanding and philosophy and values that are important in their own lives and, quite frankly, I do not believe that the court reflects an understanding of the issues facing the Northwest," said Montana Atty. Gen. Marc Racicot.

"The 9th Circuit is just an incredibly diverse area that makes it extraordinarily difficult for 11 members of the court to have a clear understanding of every aspect of the problems that confront them," he said.

Critics complain that the court--with 28 judges, three times the number of judges of many circuits, and a far heavier caseload--takes too long to decide cases. Moreover, with most cases decided by panels of only three judges, they say, there is persistent conflict in the court's decision-making because judges are unable to keep up with the expanding case law of the circuit.

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