California Bar Journal
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Panel proposes 9th circuit regions
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Rejecting calls for a breakup of the 9th Circuit U.S. Court of Appeals, a panel of retired and current federal judges last month recommended that the huge circuit be divided into three regional sections.

In a 91-page draft report, the five-member panel also proposed creation of a new court to resolve conflicts among the three divisions.

The proposal is sure to generate plenty of discussion in Congress, whose members have long been at odds over how to run the biggest of the 13 circuit courts of appeals.

Some Republican lawmakers, who find the 9th circuit's rulings too liberal, want it split into independent circuits.

The panel rejected that idea, however, for administrative and legal reasons. "We see no good reason to split the circuit solely out of concern for its size and administration," the report said.

Instead, the panel suggested the proposed subdivision would improve collegiality within the circuit, increase the consistency and coherence of its rulings and restore "a sense of connection" between the judges and the regions they serve.

As proposed, the circuit would be divided into northern, middle and southern divisions, primarily along state lines. However, California would be split between the middle and southern divisions.

The northern division would include Alaska, Washington, Oregon, Idaho and Montana.

The middle circuit division would encompass Nevada, Hawaii, Guam, the Mariana Islands and the northern and eastern federal trial court districts of California.

California's central and southern federal court districts would join Arizona in a southern 9th circuit division.

The circuit's overall administrative functions would remain intact.

Headed by retired U.S. Supreme Court Justice Byron White, the Commission on Structural Alter-natives for the Federal Courts of Appeals was created as a compromise to legislation to split the sometimes controversial 9th Circuit. The Senate voted to divide the circuit last year, but the House prevailed with a measure to create a study commission.

The commission held hearings and took testimony for nearly a year, including suggestions from Supreme Court Justices Anthony Kennedy, Antonin Scalia, Sandra Day O'Connor and John Paul Stevens. Three justices recommended an outright split, but O'Connor suggested looking at some kind of division within the circuit.

The commission did not examine only the 9th circuit, and suggested that Congress authorize any circuit with more than 13 judgeships to consider organizing themselves into divisions similar to those suggested for the Western states. It also recommended that subdivisions be required for circuits with more than 17 judges.

Appellate courts also should be permitted to convene two-judge panels to consider some types of cases, the commission suggested, particularly those whose outcome "is clearly controlled by well-settled precedent."

Under the commission's proposal, each geographical division within the 9th Circuit would include at least seven active appellate judges, one of whom would serve as chief judge. A majority would be residents of the area served by the division.

Panels of two more judges in each division would consider appeals from district trial courts.

Legal disagreements among the divisions would be settled by a so-called Circuit Division, comprised of the 9th circuit's chief judge, the presiding judge of each of the three divisions, and one other appellate judge from each division.

The 9th circuit is the largest of the 13 federal appellate jurisdictions, with 28 authorized judges. Currently, there are six vacancies. Most circuits have no more than 12 judgeships.