CIRCUIT COURT BREAKUP IDEA SPLITS JUDICIAL COMMUNITY; JUSTICE SUGGESTS PLAN TO REDUCE PANEL'S MULTISTATE AREA.

Byline: Scripps-McClatchy Western Service

Supreme Court Justice Anthony Kennedy wants to split up the nation's largest and most controversial circuit court of appeals, and he wants the dividing line to cleave Northern from Southern California.

``My colleagues will be furious,'' Kennedy predicted Thursday night, ``but the judiciary must not be remote, even if it is detached.''

Kennedy is a Sacramento native who formerly served on the 9th U.S. Circuit Court of Appeals, the panel that he now wants to divide. He and others contend the existing circuit court is spread too thinly across California, Washington, Alaska, six other Western states and two Pacific territories.

``To say a three-judge panel can represent one-fifth of the people in the United States puts an undue burden (on the circuit),'' Kennedy said, adding that such ``remoteness leaves it open to special-interest groups.''

Precisely where California might be divided to help create a new circuit court remains unclear. The idea, however, is not unique, and some advocate combining Southern California with Arizona to form a new circuit. At least one of Kennedy's colleagues, Associate Justice Sandra Day O'Connor, has likewise recommended splitting the 9th Circuit - perhaps, O'Connor said, by dividing California in two.

Back in 1973, a federal commission also recommended splitting the state. The idea died.

Kennedy's comments, made to editors and publishers of McClatchy Co. newspapers, echo his recommendations made recently to a special commission studying the future of the appellate courts. It sounds arcane, but this is a sometimes nasty fight packed with lots of partisan politics, and Kennedy's views conflict with many other Western judges.

``Any advantages that might be gained by dividing the circuit are greatly outweighed by the advantages lost and the disruption and expense of the division,'' the circuit's chief judge, Procter Hug, testified earlier this year.

Circuit courts consider appeals filed from federal district courts and are outranked only by the U.S. Supreme Court. Because the Supreme Court only considers a fraction of the cases presented to it, the circuit courts often end up being the last word in the law. Though the 9th Circuit has 28 judges, most decisions are made by three-judge panels.

Of 23 9th Circuit judges polled this year, 19 said they don't want to split up. California Gov. Pete Wilson is opposed to a split, as is the American Bar Association. At least some of these defenders of the status quo, moreover, worry about the motives of those politicians who have been pushing change.

``The entire issue is driven, very simply, by blatant politics of the most parochial nature,'' U.S. District Judge Terry Hatter Jr. testified earlier this year.

Chief among those proponents have been conservative Republican senators, who came close last year to forcing a circuit split through legislation. As a compromise, Congress established a commission chaired by former Supreme Court Justice Byron White. This commission will make its own recommendations in December.

The Republican lawmakers often cite the 14 million square miles covered by the circuit and the record workload imposed by the 8,649 cases pending last year. But they're angry, as well, at some particular decisions, and suggest the California-based circuit veers left.

``The most compelling argument for the split comes from the consequences of size,'' Sen. Slade Gorton, R-Wash., testified earlier this year. ``In particular, the obstacles that the size of the court poses to collegiality on the court and to familiarity with the diverse issues, the diverse people and the law.''

Among Supreme Court watchers, the 9th Circuit is famous for being overturned. Last year, 29 cases advanced from the 9th Circuit to the Supreme Court. In 28 of those case, the higher court reversed the appellate ruling.

``Despite the high quality of our judges, our Supreme Court reversal rate is notorious,'' 9th Circuit Judge Andrew Kleinfeld testified in San Francisco.