12th Cir. on Horizon? Breaking Up 9th Cir. Hard to Do

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By Patrick Gregory

Feb. 9 — Breaking up the Ninth Circuit as proposed by Arizona politicians wouldn't be as simple as the division of the Fifth Circuit and the resulting creation of the Eleventh were in 1981, law professors and former Ninth Circuit clerks told Bloomberg BNA.

The proposal might “be seriously considered” if Republicans are able to control all three branches of government, Carl Tobias, a professor at the University of Richmond law school, Richmond, Va., whose research focuses on federal courts, told Bloomberg BNA Feb. 5.

Professors disagreed about whether or not the Ninth Circuit should be broken up for judicial efficiency and to lessen “outlier decisions.”

But they agreed that the size of California alone makes the idea a tricky proposition.

The 2016 Judicial Administration and Improvement Act —introduced Feb. 3 by Sen. Jeff Flake (R-Ariz.) and Rep. Matt Salmon (R-Ariz.) with the support of Governor Doug Ducey (R-Ariz.)—would pull Arizona, Nevada, Montana, Idaho and Alaska into a new Twelfth Circuit. Ducey has also proposed moving Arizona to the Tenth Circuit as an alternative.

All of the choices for how to divide the circuit “are pretty crummy, and the reason they're crummy is because California is so darn big,” Brian T. Fitzpatrick, a professor at Vanderbilt law school, Nashville, Tenn., whose research focuses on federal courts, told Bloomberg BNA Feb. 4.

Political disagreement about a split and a lack of support from judges are additional obstacles, professors said.

The Fifth Circuit similarly faced administrative difficulties due to its size—spanning from Florida to Texas—and debate over whether to divide it continued for decades. But it eventually broke up with no opposition in Congress to the change.

‘Justice Delayed.'

“The Ninth Circuit is by far the most overturned and overburdened court in the country, with a 77% reversal rate,” Ducey said in a press release.

The circuit has a “voluminous caseload and disproportionate size,” resulting in an “abysmal turnaround time of over 15 months for an average ruling,” Ducey said.

The Ninth Circuit hears 12,000 appeals each year, “making it four months slower than the average circuit court,” Flake and Salmon said in their own press release.

Their bill is necessary because justice “delayed is justice denied,” Salmon said.

A “reasonable split is justified, because the circuit's size” prevents an “equal administration of justice,” Jennifer Spreng, a professor at John Marshall Law School, Atlanta—who clerked for Ninth Circuit Judge Andrew J. Kleinfeld—told Bloomberg BNA by e-mail Feb. 8.

Today the “total filings in both parts of the former Fifth Circuit—which themselves dwarf the others” are “only one-sixth more than in the Ninth,” Spreng said.

“Incredible, really,” Spreng said. “If you imagine an ‘average' circuit by taking the mean 2014 filings of the ten geographical circuits, that circuit would process only one-third of the cases of the Ninth Circuit,” she said.

‘Outlier Decisions.'

The Ninth Circuit disproportionately “produces outlier decisions, and it cannot be helped” because the circuit's size “is what causes the outliers,” Fitzpatrick, who clerked for Ninth Circuit Judge Diarmuid O'Scannlain, said.

It's “simple math,” Fitzpatrick said, who made this argument in a 2007 Los Angeles Times piece.

“When you have bigger and bigger courts, if everything else is held constant, the probability of randomly selecting two outlier judges on your three judge panel goes up,” he said.

These outlier decisions will happen regardless of “which political direction you talk about,” Fitzpatrick said.

The number of Ninth Circuit decisions which are reversed by per curiam opinions is telling, he said.

“Sometimes the Supreme Court gets a cert petition, and the lower court decision is so wrong, the Supreme Court reverses it without even having oral argument,” Fitzpatrick said.

The Ninth Circuit is “off the charts” in terms of those per curiam reversals, he said.

Fewer Circuits Better?

Despite the Ninth Circuit's reversal rate, “I don't think you should reconfigure circuits because you don't like the way they're reaching decisions,” Vikram David Amar, who is the dean of and a professor at the University of Illinois Law School, Champaign, Ill., and whose research focuses on federal courts, said.

Moreover, while some say the Ninth Circuit is too big to function efficiently, “I don't know why that has to be the case,” Amar, who clerked for former Ninth Circuit Judge William A. Norris, said.

“With technology and communications the way they are, there are some people who have argued you should have fewer and not more circuits,” Amar said.

They say “you should consolidate all the circuits into bigger units,” Amar said.

That way each circuit would look “a little bit more like America as a whole” instead of a “bunch of different circuits that are all very demographically different from each other, on race, on religion, on economic lines,” Amar said.

The issue can be compared to the movement in college athletics “to consolidate conferences into fewer, bigger conferences that are kind of more representative of the nation as a whole,” Amar said.

Former Fifth Circuit Judge John Minor Wisdom, “famous for his liberal decisions in civil rights cases,” had similar reservations about splitting up the Fifth Circuit, according to a 1981 New York Times story.

Wisdom said that courts “ ‘perform a federalizing function' ” and that he feared smaller circuits would let judges “ ‘serve parochial pride and prejudices.' ”

Unintended Consequences

Splitting up the Ninth Circuit could make the problem of outlier decisions worse, Amar said.

Removing “mountain states and states with a different demographic makeup” than California from the Ninth Circuit would “exacerbate the unrepresentativeness” of the circuit caused by California, Amar said.

If one thinks that the Ninth Circuit is “too liberal now, you're going to make what's left of the Ninth Circuit even more liberal,” Amar said.

California Conundrum

“I think in some ways it was easier” to break up the Fifth Circuit “because of the geography,” Tobias said.

“The Ninth is just so different,” even from the old Fifth, in part due to California's “huge” size, Tobias said.

A breakup proposal that doesn't “split up California creates a huge circuit all by itself, because no matter what circuit California is going to be in, it's going to be gigantic,” Amar said.

Fitzpatrick agreed, but said “no one wants to do that.”

There's “not a great way” to divide the circuit, Fitzpatrick said. But “it's better to do it in a mediocre way than not do it at all,” he said.

Pacific Circuit

Keeping Oregon, Washington, Guam and the Northern Mariana Islands together in the Ninth Circuit “has the benefits of providing a meaningful counterweight to California and maintaining the Ninth Circuit's geographical coherence—a sort of ‘Pacific Circuit,' ” Spreng said.

But a new Twelfth Circuit would lack such coherence, she said.

“Alaska would seem to ‘belong' to a Pacific Circuit, and there is no special geographic relationship Alaska has with Arizona,” Spreng said.

The “true coherence of the new Twelfth may really be that state officials would like to be liberated from the Ninth Circuit!” Spreng said.

“That does not offend me,” she said.

While circuit assignments shouldn't be changed lightly, neither should they be a “jail where we lock the door and throw away the key for all time” even when changes are necessary, Spreng said.

Politics Now, Then

A breakup isn't a realistic possibility “unless the Republicans have all three branches,” Tobias said.

Amar agreed. “I don't think many of the Democrats in the Senate really want to go down the path of restructuring circuits for partisan or political objectives,” nor would President Barack Obama, he said.

In contrast, the legislation that broke up the Fifth Circuit passed the House and Senate “without opposition,” according to then-Fifth Circuit Judge Robert A. Ainsworth Jr. in Fifth Circuit Court of Appeals Reorganization Act of 1980, 1981 BYU L. Rev. 523 (1981).

But the proposal did face opposition from civil rights organizations, Ainsworth said.

A resolution from the National Association for the Advancement of Colored People expressed concern about changing the Fifth Circuit, which it viewed as the best circuit “ ‘on civil rights issues in the nation,' ” Ainsworth said.

Despite similar concerns held by Wisdom and other Fifth Circuit judges, the circuit's bench “unanimously recommended” a breakup in 1980, according to the Federal Judicial Center.

But “I think the judges for sure have never been persuaded on the Ninth Circuit,” Tobias said.

Ninth Circuit Chief Judge Sidney Runyan Thomas analyzed eight proposals to break up the circuit but said in 1998 that none were “viable structural alternatives” .

Precedent Problem

If a Twelfth Circuit were created, it would have to decide which precedent to follow.

The new Eleventh Circuit decided to follow Fifth Circuit precedent as it existed the day before the breakup occurred, in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).

Doing so would “maintain and promote stability and predictability” in Alabama, Florida and Georgia, the court said.

“Splitting circuits is probably less legally disruptive to residents of the circuit than reassigning a state to another” existing circuit, Spreng said.

The alternate proposal of moving Arizona to the Tenth Circuit “would create considerable confusion about what law applied,” raising a host of questions, Spreng said.

Those questions include whether old Ninth Circuit law or Tenth Circuit law would apply, whether the law would “change overnight,” and whether both Ninth and Tenth circuit law would “apply depending on what state a case arose from,” Spreng said.

“One lesson from the Fifth Circuit is that a pure split can be fairly neat and clean,” Spreng said.

But “moving states from one circuit to another probably is not,” she said.

New State Analogy

A new circuit might feel the tension felt by new states “like Alaska and Hawaii in the 1950s,” Amar said.

New states “feel that they really want to respect precedent from other states,” Amar said.

But those states also feel that they “have the leeway to fashion their own,” Amar said.

“So they might not feel bound by” such precedent, “although they may be heavily guided by it,” Amar said.

A new circuit might therefore choose a path “that's in between starting anew and being constrained” by what its “parent has been doing,” Amar said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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