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Blue ribbon judicial panel will recommend fate of federal Ninth Circuit.

A special commission appointed by Chief Justice William Rehnquist has been charged with recommending by the end of this year whether the jurisdiction of the Ninth U.S. Circuit Court of Appeals should be divided.

Legislation setting up the commission was passed by Congress last year as a compromise measure. The Senate had passed legislation that would have created a twelfth Circuit out of parts of the Ninth, but the House did not agree.

Under terms of the proposed Senate bill, only California, Nevada, Guam, and the Northern Mariana Islands would remain in the Ninth Circuit. A new circuit would include Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, and Washington.

Members of the new Commission on Structural Alternatives for the Federal Courts of Appeals are

* U.S. District Judge William Browning of Tucson, Arizona;

* N. Lee Cooper of Maynard, Cooper & Gayle in Birmingham, Alabama, immediate past president of the American Bar Association;

* Judge Gilbert Merritt of the Sixth Circuit, immediate past chair of the executive committee of the U.S. Judicial Conference;

* Judge Pamela Ann Rymer of the Ninth Circuit; and

* Retired Supreme Court Justice Byron White.

The commission's work is not limited to studying the Ninth Circuit. It is charged with responsibility to examine the structure and alignment of the federal appeals court system "with particular reference to the Ninth Circuit."

The movement to split the circuit is being led by senators from the northwestern states, notably Senators Slade Gorton (R-Wash.) and Conrad Burns (R-Mont.). Criticism includes alleged slow administration caused by overloaded dockets, inconsistent decisions caused by the large number of judges (28), and substantive disagreements based on the perception that California judges are "out of touch" with and "too liberal" for public attitudes in the Northwest. Part of the backlog may be explained by 10 vacancies now on the court roster.

According to law professor Carl Tobias of the University of Montana, who has studied the issue, division of the Ninth Circuit would be only the third change to circuit structure in the 100-year history of the appellate system. In 1929 the Tenth Circuit was set up from parts of the Eighth, and in 1980 the Eleventh Circuit was carved out of the Fifth.

The process that led to creation of the Eleventh Circuit is similar to that now in progress. The Hruska Commission (named for a Nebraska senator) recommended during the 1970s that the large Fifth and Ninth Circuits be divided. After some debate, the Fifth Circuit judges agreed in 1980 that Alabama, Florida, and Georgia should constitute the Eleventh Circuit.

"The problem is California," said Tobias. "You don't really want a one-state circuit, but more than half of Ninth Circuit appeals are from California courts."

The Hruska Commission recommended splitting California between two federal circuits. The northern and eastern districts were to become part of a northern circuit and the central and southern districts were to join a southern circuit.

"But that's pretty unprecedented, too," said Tobias. "It's tough to know what to do with California."

Ninth Circuit Chief Judge Proctor Hug Jr. strongly opposes breaking up the circuit, and court officials have argued that modem technology, such as e-mail and videoconferencing, makes a large circuit manageable. The Ninth Circuit is acknowledged to be a leader in using technological advances.

The same technology argument, however, has been used to support viability of the proposed Twelfth Circuit The new entity would be as widespread as the current Ninth, ranging from Alaska to Arizona and from Montana to Hawaii.

Tobias hopes the commission will do more than debate boundaries for a proposed new circuit. "This is a systemic problem that needs a systemic solution," he said. "All the circuits have experienced docket growth and related problems. To single out one circuit and fiddle with it, rather than examine the whole system that is experiencing similar problems, could be shortsighted."
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Author:Dilworth, Donald C.
Publication:Trial
Date:Mar 1, 1998
Words:641
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