Metropolitan News-Enterprise


Monday, March 10, 2003


Page 1


New Efforts Introduced in Senate, House to Break Up Ninth U.S. Circuit Court of Appeals


From Staff and Wire Service Reports


Efforts to break up the Ninth U.S. Circuit Court of Appeals, pronounced dead by the court’s chief judge a year ago, have been revived in Congress.

Sen. Lisa Murkowski, R-Alaska, Thursday introduced S. 562, to divide the circuit in two. The bill would keep California and Nevada in the Ninth Circuit while creating a Twelfth Circuit, made up of Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington, as well as Guam and the Northern Mariana Islands.

A companion house measure, H.R. 1033, was introduced Feb. 27 by Rep. Michael Simpson, R-Idaho. The Simpson bill differs from the Murkowski measure in that it would move Arizona, home of Ninth Circuit Chief Judge Mary M. Schroeder, to the Denver-based Tenth Circuit, which includes Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

Schroeder—who told members of the Federal Bar Association during a “State of the Circuit” address in Los Angeles last year that the circuit was doing well because “[t]here are no moves to divide it, knock on wood”—and other Arizona-based judges would have the option of remaining in the Ninth Circuit or going to the Tenth Circuit.

Advocates of a split have long argued that the 28-judge Ninth Circuit is too big and that dividing it would curb what they see as its leftist bent.

Murkowski reiterated those arguments on the Senate floor last Tuesday.

“The recent history of the 9th Circuit suggests a judicial activism that is close to the fringe of legal reasoning,” she said. Her speech condemned the appeals court for denying en banc review of a decision in which it said public school recitations of the pledge of allegiance are unconstitutional because of the words “under God.”

Simpson said the decision was not the reason for his bill, but stood “as overwhelming proof that this court’s illnesses cannot be easily mended.”

Murkowski noted that during the 1990s, the Supreme Court overturned almost 90 percent of the 9th Circuit cases it reviewed. “In 1997, 27 of the 28 cases brought to the Supreme Court were reversed — two-thirds by a unanimous vote,” she said.

Defenders of the Ninth Circuit say it has a reversal rate that is comparable to other circuits. Ninth Circuit Judge Sidney Thomas, from Montana, told a congressional panel last year that in the 1996-97 court term — the one the critics usually cite — five of the other circuits had all of their decisions reversed.

Republican lawmakers from the states proposed to be split off have been trying to divide the circuit for years. Murkowski’s father, now-Gov. Frank Murkowski, introduced a bill to do so three times and was a co-sponsor in other years.

The Murkowski bill has six co-sponsors and the Simpson bill four, all Republicans.

The legislation, Murkowski said, would create a “regional commonality.”

“An effective appellate process demands mastery of state law and state issues relative to the geographic land mass, population and native cultures that are unique to the relevant region,” she said. 

Splitting the circuit has consistently been opposed by a large majority of the court’s judges and by the Judicial Council, which consists of circuit and district judges from throughout the circuit.

Although none of the previous circuit-splitting bills passed, one resulted in a compromise creating a federal commission headed by retired Supreme Court Justice Byron White—since deceased—to study that and related issues.

The White commission proposed that, rather than creating a new circuit, the existing circuit be divided into three semi-autonomous divisions, with California split between two of them. The proposal was not viewed as an improvement by split opponents, drew opposition from California officials concerned about the practical impacts of dividing the state, and never went anywhere in Congress.

Schroeder, who has staunchly opposed all efforts to split the circuit, could not be reached Friday for comment, and a spokesperson said the court had no official comment.


Copyright 2003, Metropolitan News Company