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Don't Split 9th Circuit, House Panel Is Told

Appeals: Chief judge opposes a bill to divide the nine-state court, long a target of conservatives. But 'we are too big now,' a colleague says.


WASHINGTON — The U.S. 9th Circuit Court of Appeals, the nation's largest, should not be broken in two, the court's chief judge told a House Judiciary subcommittee Tuesday.

Speaking at a hearing called in the wake of the court's controversial decision declaring the Pledge of Allegiance unconstitutional when recited in public schools, Judge Mary M. Schroeder, said, "It is wrong to realign circuits or not realign them and to restructure courts or to leave them alone because of particular judicial decisions or particular judges."

Instead, she said, legislators should allocate money for additional judgeships on the court, which covers nine Western states. No new judges have been added to the 28-judge court since 1984, although the caseload has doubled, she said.

Conservative congressmen view the existing court as a hotbed of liberal activism and have called for changing its makeup. In April, Rep. Michael Simpson (R-Idaho) introduced legislation that would redraw the 9th Circuit to include only California, Nevada and Arizona. The bill would create a new 12th Circuit, comprising Alaska, Hawaii, Idaho, Montana, Oregon, Washington and the U.S. territories of Guam and the Mariana Islands.

The bill was heard in committee for the first time Tuesday.

"One could take these unique circumstances of the calling of the hearing and conclude it is an attempt to punish the 9th Circuit for its decision on the Pledge of Allegiance," said Rep. Howard L. Berman (D-Mission Hills).

Berman said he has reviewed the issue and has concluded that the court should remain whole.

At the hearing Tuesday of the subcommittee on courts, the Internet and intellectual property, some members of the Judiciary Committee, as well as another 9th Circuit judge, questioned the court's ability to manage its huge caseload.

"The only consideration should be optimal size for a judge to do his job," said 9th Circuit Judge Diarmuid F. O'Scannlain. "We are too big now."

The court has twice as many pending cases as the second-busiest 5th Circuit, which comprises three states. The 9th Circuit takes an average of 15.8 months to hear a case once an appeal is filed, versus an average of 10.9 months for all courts of appeal, according to federal data. This is evidence that the court has grown too cumbersome and needs to be divided, some members of the legal community said.

"Justice delayed is justice denied," Idaho Atty. Gen. Alan G. Lance testified at the hearing. "We in the West are not getting it."

Court records show that the 9th Circuit's decisions are often overturned. From 1990 to 1996, the Supreme Court struck down 73% of the circuit's rulings it reviewed. In 1997, the high court reversed 27 of 28 rulings by the circuit. Since 1997, the Supreme Court has overturned 26 rulings by the 9th Circuit in unanimous opinions.

In its decision last month, a three-judge panel of the 9th Circuit said reciting the pledge in public schools violated the separation-of-church-and-state clause of the Constitution because of the words "under God." The ruling is on hold pending an appeal.

By dividing the court in two, Lance said, the new courts could have "commonalities of interest." The three states in the Colorado River basin are most likely to hear death-penalty appeals, he said, while the northwestern states connected with the Columbia River basin share similar Native American and environmental concerns.

"It's a long way from Honolulu to Seattle, no matter what circuit you are in," responded Schroeder, the 9th Circuit's chief judge. "You can't legislate geography."

Opponents have contended in the past that the only way to divide up the court's caseload equally would be to place a portion of California in the new circuit, which could ultimately result in conflicting interpretations of federal law in the same state.

Conservative legislators have vowed to continue the fight--now three decades old--to break up the court.

Sen. Frank Murkowski (R-Alaska) introduced a similar bill July 15. He has also vowed to place an amendment to split the 9th Circuit in "most every bill" until the full Senate votes on the issue.

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