Case o' The Week: Good or bad CARMA for the Ninth? New Circuit Split Bill S. 1845

Ed. Note: These have been slow weeks for new opinions, and the two big criminal cases of last week have been well-analyzed by Circuit blog commentators Jon Sands and Steve Sady below. This week’s memo therefore looks at a recent Senate bill on a long-standing debate: the Ninth Circuit split.

Players: Republicans, Judges Kleinfeld, O'Scannlain and Tallman in favor of the split, Chief Judge Shroeder, the Judicial Conference, and Democrats opposed.

Facts: On October 13, Alaskan Senator Lisa Murkowski and Nevada Senator John Ensign co-sponsored a bill that would split the Ninth Circuit. Court of Appeals Restructuring and Modernization Act, (“CARMA”), S. 1845, available here. The split would leave California, Hawaii, and the Pacific Islands in the Ninth, and create a new Twelfth Circuit with Alaska, Washington, Oregon, Idaho, Montana, and Arizona. It would increase the number of judges authorized for the new Twelfth Circuit, and add new cities to the rotation of the Court. Senate Bill 1845 is the latest in a string of proposed reorganization acts, and combines aspects of Murkowski’s and Ensign’s previous proposals.

Proponents Say: The Ninth is too large – bigger than the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 11th Circuits combined. It encompasses nearly 40% of the United States land area, and makes it impossible for its judges to frequently meet and discuss matters, reducing collegiality. It also is very difficult for Circuit judges to travel for a distant oral argument. The Circuit’s enormous size produces inefficiencies and makes it slow: a disposition in the Ninth takes an average of five months longer than the national average. Its crushing workload makes it impossible for any one judge to keep up with all of the opinions issued in the Circuit. Moreover, because all of its judges do not sit en banc, a very small minority – six judges – can dictate the law for all twenty-four active judges. This is particularly unfair when the population of the Ninth is predicted to exceed 63 million by 2010.

Opponents Say: The official position is that the Ninth is working well, and any problems can be corrected without the drastic remedy of a split. For example, on January 1, 2006 the Ninth will increase its en banc Court from eleven to fifteen judges. There are economies of scale that would be lost with a Circuit split: court staff would have to be doubled to handle the new Twelfth Circuit. Finally, a split would foster intra-circuit division on issues that have broader importance to all Western citizens, such as water rights. Unofficially, many view the Circuit split as a political move to limit the power of “liberal” California judges. Most agree that the new Twelfth Circuit (and all other previous proposed spin-offs) would be much more conservative than the current combined Ninth. Critics particularly worry about the environmental impact, with more conservative judges undermining environmental protections in the Pacific Northwest.

Impact on Federal Criminal Defense: The common wisdom is that this split would benefit federal defendants in California and the Pacific and be bad news for those in the Pacific Northwest, Arizona and Nevada. That may paint with too broad a brush, though. For example, Judge Betty Fletcher sits in Seattle, in what would be the new Twelfth Circuit. Although she is now senior status, she’s a good example of great judges who sit outside of California. And any experienced practitioner can rattle off many California Ninth judges who are certainly no friends of the defense bar. Note that Federal Defenders cannot lobby for or against the split, although state and federal bars, and the Federalist Society, have certainly weighed in on the issue.

For Further Reading: There’s been much said about the pros and cons of the Circuit split. A good starting place is the Federal Bar web page, which has links to various testimony and editorials on both sides of the issue. See web page here. The Ninth itself has prepared a bibliography of the issue, with many links. See Ninth bibliography here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org.