Court order: proposed legislation would break up 9th Circuit.

RAYMOND Fisher loves the variety in his job. As a judge in the Pasadena courthouse of the U.S. 9th Circuit Court of Appeals, he gets to travel every month--Hawaii, Oregon and Alaska are frequent stops. Along the way, he hears disputes on everything flora grizzly bear habitats to botched movie deals to search-and-seizure disputes along the U.S.-Mexico border.

"Each of the states has its own personality and histories which are quite interesting to be a part of," he said. "I'm not anxious to see that reduced or shrunk."

It's not an idle concern.

The 9th Circuit encompasses the largest geographic region of the 13 circuits that hear appeals of federal cases, covering nine states and two U.S. territories. It's also the most controversial.

Now, two bills before Congress would break up the massive circuit court. Supporters of the legislation say that the 9th Circuit is too large to operate efficiently, while others say that rulings by its judges, most of whom were nominated by Democratic presidents, are too liberal and out of step with much of its own territory.

"The 9th Circuit is too large," said Lindsay Slater, chief of staff for Rep. Michael Simpson, R-Idaho, who introduced the bills in January. "Judges in San Diego are making decisions that affect people in Idaho and Fairbanks, Alaska."

The 9th Circuit has 47 judges spread across 16 cities in California, Nevada, Arizona, Idaho, Montana, Oregon, Washington, Alaska, Hawaii, Guam and the Northern Mariana Islands. (Of those, 24 are full time judges and 23 hear cases on a part-time basis.)

But California dominates the Circuit, with 70 percent of the appeals filed before it from the state. Moreover, last year about 15.5 percent of the appeals--the highest percentage-came from the Central District of California, which covers the Los Angeles region. Los Angeles County is also home to the largest proportion of 9th Circuit judges, with 11 in Pasadena, two in downtown Los Angeles and one in Woodland Hills.

Yet the work of the 9th Circuit is largely a mystery. "Most people think we're still a hotel," said Eve Fisher, deputy clerk of the 9th Circuit's Pasadena courthouse, which was built in 1903 to be just that. "On a given day, we're called to the counter wondering if we need domestic help."

Each judge hears up to 40 cases during a single week of the month. Sometimes, cases are heard near the city where they originated, but the location may be randomly selected.

Unlike the U.S. Supreme Court, the 9th Circuit must accept all appeals. The first step is a three-judge panel, whose members are selected at random. The panel reviews the history of the case, reads appellate briefs and sometimes hears oral arguments by the lawyers on both sides. They discuss the case in private and issue a decision based on the opinions of at least two of the three judges. One judge writes the decision. Lawyers can then request that a larger panel of judges in the Circuit hears the case.

Splitting up circuit

Pasadena is one of three courthouses where most 9th Circuit cases are heard; the others are in San Francisco and Seattle. On occasion, cases are heard at smaller courthouses, such as in Alaska, where a single judge of the 9th Circuit has his chambers.

It is from those smaller regions where support for splitting the 9th Circuit has been building. One of Simpson's bills would leave California, Arizona and Nevada in a new 9th Circuit and create a 12th Circuit for the remaining states and islands. The other bill would create a 12th Circuit and 13th Circuit from the existing states, leaving California with Guam, Hawaii and the Northern Marianas Islands, as the new 9th Circuit.

A similar bill calling for the three-way split passed the House of Representatives last fall but died in the Senate Judiciary Committee. This time, the legislation might stand a better chance because of a more Republican-dominated Senate. "The three-way split was more politically respectable because California is such a large state nobody wants to be with it," said Slater.

But 9th Circuit Chief Judge Mary Schroeder said most of the judges oppose a split because it would do nothing to reduce the increasing workloads in California, where immigration appeals have flooded the system. Those cases would still be filed in a 9th Circuit that includes California and Arizona, while the newly created circuits would absorb many of the 9th Circuit judges.

"They would get proportionally more judges and we'll get proportionally more cases, which means the people of California and others will have much slower going," said Judge Alex Kozinski, who works out of the 9th Circuit's Pasadena courthouse. "They'll get a holiday while the current 9th Circuit would get judges already overworked with more cases per judge."

Gov. Arnold Schwarzenegger, who opposes the breakup, reiterated those workload concerns in a letter last year to Sen. Dianne Feinstein, D-California, that said splitting the Circuit would not "present any balanced division of the current court's caseload."

The 9th Circuit handled almost 23 percent of the nation's 62,762 federal appeals in fiscal year 2004, according to the Administrative Office of the U.S. Courts. Filings increased 52 percent in 2004 from five years earlier (the nationwide increase for the same period was 14 percent).

The workload has caused the 9th Circuit to be one of the slowest circuits in processing appeals. The median time from filing to resolution is 14-months, compared with the 10-month median nationally.

Schroeder argues that the high number of cases has made judges and clerks more efficient. A clerk simplifies the process by assigning points to each case based on complexity and batching together cases with similar topics so they may be heard during the same week.

"If you can't summarize the key points in your case in five to 10 minutes you're probably saying too much," said David Axelrad, a partner and appellate lawyer at Horvitz & Levy. "Sometimes, they'll just cut you off and say, 'You're done.'"

Schroeder said the proposals are more about political maneuvering in the highly charged nomination of federal judges.

The 9th Circuit is perceived to be more liberal in its rulings than other Circuit courts, a perception that's fueled whenever there is a controversial ruling, such as the 2002 decision that the Pledge of Allegiance is an "endorsement of religion" because it includes the phrase, "under God." That decision was overturned by the U.S. Supreme Court.

Schroeder dismissed the liberal perception in most cases, but agreed that rulings may appear unfair if they involve the Circuit's en banc panels. These panels hear a select number of cases in which the ruling of a three-judge panel has been questioned. In all circuits except the 9th Circuit, en banc panels include every full-time circuit judge (it excludes senior circuit judges, who are semi-retired but still hear cases). Because the 9th Circuit is so large, only 11 of its 24 full-time circuit judges sit on en banc panels.

"You're almost as likely to have every viewpoint on the court represented if you have 11 judges as you would with all of them, which would be 24," Schroeder said. "But if you have 11 judges, six can make circuit law. The perception is that's too few.'"

She said she would be open to changing the panels to include up to 15 judges in order to have an eight-judge majority. Last month, Simpson introduced a bill that would require the 9th Circuit to have all its judges sit on en banc panels.

But these panels account for only a small percentage of the 9th Circuit's cases. The real problem, she said, is that the 9th Circuit needs to have more judicial positions budgeted for the bench, called "judgeships."

"Our current request is for five permanent and two temporary judges," she said. "But there have been no additional judgeships in the 9th Circuit since 1984. So we have learned to function with the judges we have."

Only two people have been nominated by President Bush to fill four vacancies at the 9th Circuit. One candidate, Los Angeles Superior Court Judge Carolyn Kuhl, withdrew her name earlier this year. The other, William Myers, solicitor at the U.S. Department of the Interior, was approved last month by the Senate Judiciary Committee.

Both candidates, along with several other nominees to other circuits, were blocked in past years by Democratic filibusters. In recent months, Senate Majority Leader Bill Frist, R-Tennessee, has urged his colleagues to employ a rarely used procedure called a "nuclear option," which would require only 51 votes to break a filibuster and thus accelerate the nominating process.

But even if all four 9th Circuit vacancies were filled with Bush's nominations, most of the Circuit's judges would be nominees of Democratic presidents, a rarity among the nation's appellate circuits.

Circuit Tales

The 9th Circuit Court of Appeals has a long, storied history.

* The circuit spans the distance to the Pacific's Northern Mariana Islands, which are closer to the Philippines than Hawaii is to Los Angeles.

* Established in 1837, long before California entered the union, for the states of Alabama, Arkansas, Louisiana and Mississippi. In 1866, California was assigned to the circuit when it was reorganized.

* The Circuit building is housed locally in a prominent Pasadena landmark, the former Vista Del Arroyo Hotel, which opened in 1903 during the great age of Pasadena hotel building.

* Its 47 judges are the most of any Circuit Court, though the total also includes two judges who sit by themselves in isolated chambers in Juneau, Alaska and Honolulu.

* Four members were nominated by George W. Bush, 15 by Bill Clinton, four by George H.W. Bush, nine by Ronald Reagan, 12 by Jimmy Carter, three by Richard Nixon and one by John Kennedy.

Compiled from statistics by the 9th Circuit, the Administrative Office of the U.S. Courts, the Federal Judicial Center and the Pasadena Visitors & Convention Bureau