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March 01, 2017

House Judiciary panel revisits possibility of splitting the Ninth Circuit

The ABA reiterated its opposition this month to proposals to split the Ninth Circuit Court of Appeals when the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet revived the issue by holding a March 16 hearing.

The Ninth Circuit is the largest of the 12 regional courts of appeals, with 29 judges covering nine states and two territories. The states and territories in the circuit are California, Oregon, Washington, Montana, Idaho, Nevada, Arizona, Alaska, Hawaii, Guam and the Northern Mariana Islands.

“The ABA applauds the Ninth Circuit’s initiative, willingness to innovate, and determination to reduce its case backlog,” the ABA stated, adding that the circuit “continues to cope admirably with its rising caseload without jeopardizing the quality or consistency of justice rendered.”

The association, which has examined the issue of restructuring the Ninth Circuit on multiple occasions over the past 50 years, adopted policy in 1990 opposing division of the circuit after earlier supporting splits of both the Fifth and Ninth Circuits. The ABA concluded that procedural changes implemented during the preceding decade, in conjunction with other court management innovations, give the Ninth Circuit the tools it needs to handle its increasing caseload.

The statement, submitted for the hearing record, explained the ABA standard for assessing the need for circuit restructuring: “Circuit restructuring should occur only if compelling empirical evidence demonstrates adjudicative or administrative dysfunction in a court so that it cannot continue to deliver quality justice and coherent, consistent circuit law in the face of increasing workload.”

The ABA emphasized that no compelling evidence exists to support claims that the Ninth Circuit is failing to deliver quality justice. Congress can bring justice closer to the people served by the Ninth Circuit, however, by “promptly filling existing vacancies, authorizing new and temporary judgeships as needed, and providing concomitant resources when federal jurisdiction is expanded or national policies are implemented  that result in significant increases in the work of the federal courts,” the statement said. 

During the hearing, three Ninth Circuit judges testified in favor of keeping the circuit as it is.

“Not only is there a lack of compelling empirical evidence demonstrating the need to undertake the drastic solution of a circuit split, there is compelling evidence that the best means of administering justice in the western United States is to leave the Ninth Circuit intact,” Ninth Circuit Chief Judge Sidney R. Thomas testified. “A circuit split would increase delay, reduce access to justice, and waste taxpayer dollars. Critical programs and innovations would be lost, replaced by unnecessary bureaucratic duplication of administration,” he said.

He was joined in his opposition by Ninth Circuit Judges Carlos Bea and Alex Kozinski.

Kozinski emphasized that the geographic size of the circuit has resulted in the deploying of innovative techniques and, as a result, the circuit has developed expertise in audiovisual issues, software development, educational programs, and materials that can be shared with the district court, other circuits and the public.

Bea cited the great advantage to business and professional communities in having a uniform body of law that covers the nine western states and Pacific islands.

The subcommittee is weighing different proposals to restructure the circuit. H.R. 196 and S. 295 would retain California, Guam, Hawaii and the Northern Mariana Islands in the Ninth Circuit and assign the rest of the states to a new Twelfth Circuit; H.R. 250 would include Oregon and Washington with California, Guam, Hawaii and the Northern Mariana Islands in the restructured Ninth Circuit; and S. 276 would assign Washington to the Twelfth rather than the Ninth Circuit.

The ABA statement points out that even the most ardent proponents of Ninth Circuit restructuring do not concur over how to split the circuit.

Those testifying in support of splitting of the Ninth Circuit included law professors John Eastman of the Dale E. Fowler School of Law at Chapman University and Brian Fitzpatrick of Vanderbilt University Law School, who maintained that large circuits are inefficient and that splitting the circuit would decrease caseloads and promote collegiality.


Back to the March 2017 Washington Letter