9th Circuit

Flake hearing airs arguments to break up 9th Circuit

By DIAMOND NAGA SIU

Sen. Jeff Flake (R-Ariz.) held an unusual Senate hearing Thursday in Phoenix to air his plan to to break up the 9th U.S. Circuit Court of Appeals.

Flake has proposed a bill to split the court’s jurisdiction, which currently covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and territorial districts in Guam and the Northern Mariana Islands.

If Flake’s bill passes, it will keep only California, Hawaii, Oregon and the two territorial districts in the 9th Circuit. The rest would form a new 12th Circuit.

Flake was the only senator in attendance at the hearing of the Senate Judiciary Committee’s subcommittee he chairs on privacy, technology and the law. The five witnesses who testified were divided, 3-2, in favor of breaking up the court.

Flake said that the 9th Circuit originally served 4 percent of the population but that the population under its jurisdiction had expanded to serve 20 percent of the nation — and continues to expand. But size, 9th Circuit Chief Judge Sidney Thomas argued at the hearing, does not hinder the court’s productivity.

“Fifty percent of our cases now are filed by pro se litigants, and our pro se unit screens all those cases and prepares analysis so the judges may move quickly,” Thomas said in his opening statement. “Last year, our mediation unit settled over 1,000 appeals, and that exceeds the total output of some of the smaller circuits.”

Thomas also maintained that the 9th Circuit has the shortest or second-shortest average case time among the nation’s circuit courts. He argued that while the large number of open filings seem ridiculous at first glance, they’re actually on a par with other circuits’ dockets when adjusted proportionally.

And breaking up the court, Thomas argued, would not increase output, since such a move would remove resources that make it more productive.

But Beau Roysden, deputy chief counsel of the Arizona attorney general’s office, testified that even if the processing of cases is unaffected, the large docket creates inconsistent decisions. He also argued that smaller circuit courts could make the process more accessible for litigants.

“Local rule, which I found here has stronger local, regional and cultural ties within a circuit, is an important advantage in and of itself,” said Roysden, the last witness to testify. “Each of the smaller states would dramatically improve its relative strength in a new 12th Circuit.”

Roysden said California dominates the circuit because it has the most judges. But he argued that while California may have an ample supply of lawyers qualified for the bench, the people filling the spots might not bring a local know-how.

Arguments to break up the court have been in debate since the 1940s — one proposal even received approval from Congress — but have never resulted in structural change.

Some opponents of a breakup, like Sen. Dianne Feinstein (D-Calif.), note that the renewed effort comes on the heels of the 9th Circuit’s blocking some of President Donald Trump’s decisions from going into effect.

“These efforts have nothing to do with caseload,” Feinstein said in a statement. “In fact, splitting the 9th Circuit would be a huge waste of taxpayer dollars. The simple fact is that calls by President Trump and Senate Republicans to split the 9th Circuit are simply a political response to decisions they don’t like.”

Trump has issued several angry tweets about the 9th Circuit’s rulings, saying that a disproportionate number are overturned by the Supreme Court.