Ninth Circuit Simply Too Large Says Sen. Murkowski;
Needs to be revamped to ensure timely justice for all
April 8, 2004
Murkowski, testifying before the Senate Judiciary Committee, argued for adoption of her bill that would split California and Nevada from Alaska, Hawaii, the Pacific Northwest and the Pacific Territories of Guam and the Northern Mariana Islands, or of a new bill that would create two new circuits, placing California, Hawaii and the Pacific territories in the Ninth, placing Arizona, Nevada, Montana and Idaho in a new Twelfth Circuit and placing Alaska, Washington and Oregon in a new Pacific Northwest Thirteenth Circuit Court of Appeals.
Murkowski said she could support either of the two breakup plans because the Ninth Circuit is already too large and cumbersome to dispense justice to western citizens in a timely manner.
"The problems of the court's administration, the physical size of the circuit, the length of time that the court takes to resolve cases and the huge and diverse caseload for judges are obvious. The circuit is just too large and the caseload too heavy for judges to read each other's opinions. It just cries out for reform," said Murkowski.
She said statistics are telling. The Ninth Circuit last year had 11,277 cases pending, a 17 percent increase from the year before. By comparison the next busiest circuit, the Second Circuit, had only 6,767 cases pending. In the Ninth Circuit last year it took five months longer for the average decision to be reached than in the next circuit, the Fifth Circuit.
Murkowski said the backlog is likely to continue to grow since the circuit has 56 million residents, nearly twice the size of the next largest circuit, the Sixth Circuit, which contains 32 million. The Senator acknowledged there is a proposal to increase the number of judges in the circuit by seven, increasing the active judge total to 35. But she argued that would simply increase the problem where judges don't have the time to circulate three-judge panel opinions to all of their colleagues for correction or review.
"The sheer size of the circuit breeds conflicts in decisions among the three-judge panels. It also guarantees that when the court sits en banc (11 judges hearing a specific case) that the court never guarantees that its decision really is the opinion of the majority of the circuit. All an en banc proceeding insures in the Ninth Circuit is that a ruling is in reality the luck of the draw," said Murkowski.
Murkowski said that while she has disagreed with decisions by the Ninth Circuit, such as its ruling in the Pledge of Allegiance case, her desire for revamping the circuit is not designed to punish the circuit for its rulings, simply to allow the court to be more in touch with its residents.
She said a case in point is the ruling of the court in a recent Alaska suit, where the court ruled that stocking of commercial salmon fry in Kenai's Tustumena Lake violated the Wilderness Act by allowing a commercial activity in a wilderness. "The ruling stops a fisheries enhancement project that for three decades has had no impact on the environment. The ruling will remove more than 100,000 adult fish from the lake, likely reduce fish for sportsmen, subsistence rulers and personal-use fisheries by 20 percent and reduce the commercial salmon harvest by 4 million pounds for no environmental reason. It goes against 24 years of precedent. It is just a sign of how out-of-touch this circuit has become," said Murkowski.
She added that circuits should be compact enough to allow judges to know the history and workings of issues that come before the courts. "The uniqueness of the Northwest, the non-contiguous territories, and in particular, Alaska, cannot be overstated. An effective appellate process demands mastery of state law and state issues relative to the geographic land mass, population and Native cultures that are unique to the relevant region. A division of the Ninth Circuit will enable judges, lawyers and parties to master a more manageable and predictable universe of relevant case law," said Murkowski, noting that the Ninth Circuit, encompassing some 14 million square miles, is the largest of all U.S. Circuit Courts of Appeal. It is larger than the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits combined.
"Legislation dividing the Ninth Circuit will create a regional commonality that will lead to greater uniformity and consistency in the development of federal law, and will ultimately strengthen the constitutional guarantee of equal justice for all," she added.
The Judiciary Committee plans another hearing on the revamping issue next month when other legal reasons for the splitting of the circuit will be discussed.
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