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Judges Differ on 9th Circuit Fix

July 17, 1999

WASHINGTON (AP) _ The San Francisco-based 9th Circuit Court of Appeals, the nation’s largest federal appeals court, has become so unwieldy that its judges can’t keep up with all of its decisions, one of them says.

``We learn of decisions of our own court, affecting our own cases, when they are cited to us by lawyers and by our law clerks,″ 9th Circuit Judge Andrew Kleinfeld told a Senate subcommittee.

``This deprives the people we serve of two important services a court should provide,″ he said Friday. ``We cannot give them consistent, reliable applications of law to the facts of their cases. And we cannot spot and correct errors by other panels.″

Kleinfeld asked Congress to act quickly to restructure the court. He said legislation that would create three regional divisions within the court was complex and novel, but would solve problems with maintaining consistency and coherence.

The 9th Circuit covers nine states: Alaska, Arizona, California, Hawaii, Idaho, Nevada, Montana, Oregon and Washington. Its caseload of 9,000 new filings last year is nearly double the average number of cases handled by any of the 12 other circuits.

Under a plan offered by Sen. Frank Murkowski, R-Alaska, one regional division would cover Alaska, Washington, Oregon, Idaho and Montana. Another would handle Nevada, northern and central California, Hawaii, Guam and the Northern Mariana Islands. The third would cover Southern California and Arizona.

The circuit’s chief judge, Procter Hug Jr., asked lawmakers to reject the bill, saying it would undermine the court’s ability to interpret and apply federal law in the states it oversees.

Hug said a commission headed by retired Supreme Court Justice Byron R. White made a point of saying it would be wrong to restructure a court because of a particular judicial decision or particular judges.

``There is no justification for mandating this drastic change in structure that will impede, not enhance, the continued development of consistent circuit law,″ Hug told the Senate Judiciary Committee’s panel on administrative oversight and the courts.

And a 9th Circuit senior judge, Charles Wiggins, said, ``I urge you to leave well enough alone. The drive to split the court is animated by political concerns, not by a desire to improve the federal appellate courts.″

Another 9th Circuit judge disagreed, saying politics had nothing to do with the restructuring plan. The 9th Circuit, with 28 judges and a crushing workload, is simply too big, said Pamela Ann Rymer, who served on the White commission.

The 9th Circuit has drawn sharp criticism from conservatives in Congress who say too many of its judges are judicial activists who set public policy from the bench instead of simply interpreting the law.

``The gigantic caseload means it’s nearly impossible for judges to keep up with legal developments, inevitably resulting in inconsistent decisions and a high reversal rate,″ said Murkowski.

In 1997, the Supreme Court reversed 27 of 28 cases coming through the 9th Circuit, he said.

``Many of the 50 million residents of the 9th Circuit wait years before cases are heard and decided. ... The 9th Circuit has become a circuit where justice is not always swift and not always served.″

Hug said he preferred a proposal being formulated by Sen. Dianne Feinstein, D-Calif., which would make more modest procedural changes.

``Splitting the 9th Circuit Court could adversely affect the administration of justice in the West since the decisions made in one division would not be binding in the others,″ Feinstein said.

___

The bill is S. 253.

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