Critics Say 9th Circuit Is Too Big for the Job, Seek to Secede

In the days of the “circuit riders,” when roaming appellate judges of the West dispensed justice in a makeshift courtroom and departed on the next stagecoach, it made no difference that the U.S. 9th Circuit Court of Appeals spanned all that was known of the American frontier.

But the frontier today runs from Arizona to Alaska, from Montana to Guam, and the nation’s largest federal appeals court now passes judgment over a population of nearly 49 million.

The circuit spans nine states and 1.4 million square miles. Judges in Pasadena may decide whether a man is hanged in Helena; decisions on trade disputes in the Northern Mariana Islands are laid to rest in San Francisco; Phoenix jurists may be called to set limits on Eskimo fishing rights.

It has not made for judicial harmony. While the laws are universal, the context in which they are argued throughout the circuit can differ greatly: As new skyscrapers spring up along the Sunbelt, the Pacific Northwest is reeling through an economic recession. The environmental movement, a vigorous political force in Southern California, has of necessity taken a back seat to development of water and timber resources in Oregon, Washington and Idaho.

Increasingly, residents of the West’s less-urbanized states are questioning whether jurists from California should sit in judgment on their futures--questions that have prompted a coalition of senators from the Northwest to mount a new move to divide the behemoth 9th Circuit.

“We in the Northwest are tired of being the tail on a huge dog,” U.S. Sen. Slade Gorton (R-Wash.) said in introducing legislation last month with six other senators that would allow Washington, Alaska, Hawaii, Idaho, Montana, Oregon and the Pacific territories to secede from the 9th Circuit and form their own appeals court. California, Arizona and Nevada would remain.

“Northwestern states are simply dominated by California judges and California attitudes,” Gorton asserted. “It is time to acknowledge that the Northwest has developed its own legal interests, and those interests cannot be fully addressed from a California perspective.”

At issue for many of the judges of the court--who have opposed any move to divide the circuit--is the concept of a federal appeals court as a regional arbiter of federal law designed to be a step removed from regional disputes.

There are 13 federal circuit courts. They act as an intermediate step between lower federal district courts and the U.S. Supreme Court, ruling on constitutional appeals and resolving interpretations of the law that conflict from court to court. Judges are appointed by the President and serve for life.

“We are in fact the only national court left in the United States, other than the Supreme Court,” said former Chief Judge James Browning. “We are the only court which within our boundaries is represented all the points of view, basically all the problems, social and economic, of the whole nation. That kind of court can make a very positive contribution to the development of the federal law at the national level.”

Nonetheless, the secession movement has gained momentum, particularly in Oregon, where the 9th Circuit recently blocked sale of nearly 2 billion board feet of old-growth timber to protect the spotted owl, and in Montana and Washington, where the court has blocked the executions of at least three convicted killers.

Seattle residents flooded the court’s San Francisco headquarters with phone calls and telegrams in March when the court stayed the execution of Charles Campbell, convicted of brutally attacking and murdering a woman who had accused him of raping her. Campbell, who was out on work release from prison for his conviction in the rape case, also slashed the throat of the woman’s 8-year-old daughter and murdered a neighbor who happened by during the rampage. One telegram to the court talked about “anarchy prevailing.”

Understanding of Issues

“Even though I recognize that judges can dispassionately make rulings, they nonetheless imprint upon their rulings an understanding and philosophy and values that are important in their own lives and, quite frankly, I do not believe that the court reflects an understanding of the issues facing the Northwest,” said Montana Atty. Gen. Marc Racicot.

“The 9th Circuit is just an incredibly diverse area that makes it extraordinarily difficult for 11 members of the court to have a clear understanding of every aspect of the problems that confront them,” he said.

Critics complain that the court--with 28 judges, three times the number of judges of many circuits, and a far heavier caseload--takes too long to decide cases. Moreover, with most cases decided by panels of only three judges, they say, there is persistent conflict in the court’s decision-making because judges are unable to keep up with the expanding case law of the circuit.

But at the same time, many have voiced fears that simply breaking off a chunk of the circuit to serve territorial interests would threaten to create even greater conflicts in federal law that would eventually have to be resolved by the Supreme Court.

Some have predicted that such a move would force creation of an entirely new tier of intermediate appellate courts.

The judges have pointed to a number of administrative innovations that the court has put into place that enable it to run efficiently, even at three times the number of judges considered ideal for a circuit court: special panels to handle bankruptcy cases, satellite courts with their own administrative structure, provisions for allowing a limited en banc panel of 11 judges--rather than the entire court, or even a majority--to sit to resolve conflicts in law within the circuit.

Speeds Up Process

As a result, the court has consistently reduced the amount of time it takes for cases to be decided despite a caseload that is nearly twice that of most other federal appeals courts.

“Anyone who wants to jump on the 9th Circuit can usually find a case that they can disagree with, but there aren’t any well-documented administrative reasons for Balkanizing the West Coast that I’ve seen,” said Chief Judge Alfred T. Goodwin of Pasadena.

“It’s not perfect, but very few human instrumentalities are. Even the telephone company’s not perfect,” he said. “I think we’re doing a big job, we’re getting a lot of work done, and we’re doing it efficiently and economically and, I think, as well or better than we’d do if we were broken up.”

For years, the 9th Circuit was one of the most liberal appeals courts in the nation, heavily dominated by Democratic appointees who looked critically at attempts to exploit oil and gas resources in national forests, build dams on the remaining wild rivers of the West and move into pristine old-growth forests to meet a burgeoning worldwide demand for lumber.

Since then, the court has become almost evenly balanced between conservatives and liberals, and has gone from being one of the courts most frequently reversed by the Supreme Court to one of the least.

Crucial Case

But a long line of pro-environmental decisions remain, beginning nearly 15 years ago, when the circuit ruled against the state of Washington and in favor of the Indians in a dispute over salmon fishing rights.

More recently, the appeals court blocked development of a ski resort in central Washington and a dam on Elk Creek, a tributary of the Rogue River in southern Oregon, on environmental grounds. Both those decisions were unanimously reversed by the Supreme Court in May, lending new fodder to politicians from the Northwest who have argued that the 9th Circuit is out of step.

What many court critics regarded as the last straw came earlier this year when a panel of the court reversed an Oregon district court’s dismissal of a suit filed by environmentalists to block the sale of old-growth Douglas fir on federal land used as habitat by the northern spotted owl.

“I don’t think that the movement to split the circuit is really the product of the decision of one or two cases, and I don’t really think it’s accurate to portray it in that light,” said Portland attorney Mark Rutzick, who argued the case on behalf of timber industry interests.

“But there is a perception that in environmental cases in general, that the 9th Circuit is too quick to issue injunctions and take the preservationist side of disputes, without sufficient regard for the factors on the other side,” he said.

Ironically, Judge Goodwin, who has lived in Oregon most of his life, served on both the spotted owl panel and the 1975 panel that ruled in the Washington salmon fishing case.

“I am an Oregonian, born and bred, I’ve lived there most of my life, and I know the lumber industry pretty well, and it has been hard hit by a number of things,” Goodwin said. “But the environmental litigation is very late in the process, and is not really responsible for these very serious problems that they have up there.

“Any time you have a major industry that’s seriously impacted by environmental legislation and the courts enforce the law, you’re going to get dysfunctional feedback from political people. So I’m not blaming anybody, it’s just part of the process.”

Splitting a circuit court is not without precedent. Five years ago, the sprawling 5th Circuit, which stretched from Florida across the south to Texas and faced many of the same criticisms now aimed at the 9th Circuit, was sliced roughly in half to create a new 11th circuit.

Previous Legislation

Gorton, a former Washington state attorney general who has fought and lost before the 9th Circuit, introduced legislation six years ago to split it. His bill advanced hardly at all, in part because it called for the unworkable proposition of dividing California between two circuits.

This time, he has signed on four fellow Republicans and a Democrat as co-sponsors. But most agree that the bill has little chance of success without the support of congressmen from Hawaii and California--most of whom have viewed the proposal so far with suspicion.

Gorton and U.S. Sen. Mark O. Hatfield (R-Ore.), one of the major co-sponsors, say they will try to persuade their colleagues not with philosophy, but with common sense--arguing that an appellate court of 28 judges is destined to crumble under its own weight.

“The one thing that we’ve tried to be very up-front about is that there are some legitimate concerns about how the 9th Circuit operates, given its size and its jurisdiction, that Congress has shared long before the spotted owl,” said Hatfield aide Jim Fitzhenry.

But Goodwin said he believes the court can work out any differences within the Northwest flank, and even should that fail, he said, dividing the court will not solve the problem of a continually expanding caseload, particularly in California.

“You’ll still have the California problem,” he said. “We’ve still got 20 million litigious people here who like to sue each other.”

HOW CIRCUIT COURTS COMPARE 1. Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island

2. Connecticut, New York, Vermont

3. Delaware, New Jersey, Pennsylvania, Virgin Islands

4. Maryland, North Carolina, South Carolina, Virginia, West Virginia

5. Louisiana, Mississippi, Texas

6. Kentucky, Michigan, Ohio, Tennessee

7. Illinois, Indiana, Wisconsin

8. Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota

9. Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington

10. Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming

11. Alabama, Florida, Georgia

Median disposition Total case time to decide cases Active filings Circuit (in months) judges in 1988 1st 9.5 6 1,239 2nd 6.7 13 2,942 3rd 7.5 12 2,933 4th 8.1 11 3,203 5th 8.0 16 4,331 6th 11.2 15 3,831 7th 11.3 11 2,409 8th 8.9 10 2,387 9th 14.3 28 6,334 10th 15.9 10 2,066 11th 11.0 12 3,924 Wash. D.C. 12.0 12 1,925

Note: The Federal Circuit, which handles appeals on governmental issues from all across the country, is not included. Twelve judges sit on that court.

SOURCE: Administrative Office of the U.S. Courts