Splitting 9th Circuit is inevitable

Realistically, we dont expect anything to come of it this time around, but consideration of splitting the 9th Circuit Court of Appeals is a good idea.

The court handles appeals from state courts in California, Hawaii, the Pacific Islands, Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.

Based in San Francisco, it is the largest appellate court in the nation, representing 54 million people (expected to be more than 63 million in the next five years) and with 28 judgeships. The second largest circuit is in New Orleans, with 17 judges.

According to the Los Angeles Times, from July 1, 2004, to June 30, 2005, more than 15,600 cases were appealed to the 9th Circuit, triple the nationwide circuit court average of 4,783. About 70 percent of the caseload comes from California and much of that involves immigration cases.

Currently, rulings from the court take five months longer on average than rulings from other federal appeals courts. After attorneys submit all the required paperwork in their cases, it will take the board eight to 10 months to hear oral arguments. Then, unlike other circuits, as few as 11 members of the court may review the case, so a majority opinion may consist of as few as six of the 28 members.

The House Judiciary Committee has voted to split the court, with California, Hawaii, and the Pacific Islands remaining in the 9th circuit and the remaining states forming a 12th circuit.

Rep. Dan Lungren, R-Calif., calls the court cumbersome in its current form. It has been called worse.

The 9th Circuit is considered by many to be the most liberal and most often overturned appeals court in the country. Among the courts rulings was the 2002 opinion that declared the Pledge of Allegiance unconstitutional when recited in public school. The U.S. Supreme Court later overturned that decision, but it remains an example of the kind of decision that is at odds with the thinking and values of everyday Montanans.

Nonetheless, the Montana Bar Association, along with its counterparts in Washington, Hawaii, and Arizona, is against splitting the court. Establishing a new appeals court would require assembling a new bureaucracy to support it, and that would be costly.

Montanas one judge on the circuit court, Judge Sidney Thomas of Billings, told the Inter Lake that splitting the court could cost hundreds of millions of dollars just for a new headquarters and related expenses. Plus, the court would likely be based in Phoenix, which would be no more convenient to Montanans than the Seattle offices now used by the circuit court.

Thomas says that Montana has also benefited from being part of a larger circuit court. Ninth Circuit judges, for instance, have helped at times with federal cases when Montana had only one, overworked federal judge. In addition, Thomas disputes the notion that a smaller court will bring any quicker results. He said cases are usually decided in little more than a year already, and the court expedites cases from states like Montana.

Nonetheless, even if there are some practical benefits to being part of a larger court, the biggest issue is that Montanans are ultimately fed up with a court that seems out of touch with their values and concerns.

Efforts to split up the court have been around since the 1980s or earlier. This latest effort may not succeed, because of financial concerns, but ultimately it is inevitable that the 9th Circuit will be split. The tide of history cant be stopped.