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The Ninth Circuit: Out of control judicially and otherwise?

By Marion Edwyn Harrison
web posted November 14, 2005

More controversy out of the Ninth Circuit, this time styled Fields et al v Palmdale School District et al, unanimous three-Judge decision on November 2, 2005, opinion by a Carter-appointed Circuit Judge no stranger to what many lawyers, including this writer, would consider judicial excess.

Whenever there is controversy out of the Ninth Circuit, sometimes when there is not, many people look for a Congressional remedy.

Congress is as replete with surprises as with repetition. In Congress after Congress, beginning in 1940, the United States Court of Appeals for the Ninth Circuit has been the subject of some Member's bill to chop it into two Circuits. With equal certitude the bill gains some media play and legislatively goes nowhere. There now are eleven numbered Federal Circuits. Presently pending are five bills, S. 1301 and H.R. 211, which would divide the Ninth into three Circuits, H.R. 212 and H.R. 3125, which would bifurcate the Ninth.

The Ninth Circuit is a bit of a monster - for reasons of geography, population, number of Judges and, most conservatives and the Supreme Court of the United States would say, some of its peculiar jurisprudence.

What kind of monster? Let's leave aside the District of Columbia Circuit, the geography of which is only the City of Washington and which primarily is an administrative-law court of review - that is, cases directly or indirectly appealed from Federal Government actions. Let's also leave aside the Federal Circuit, which has very circumscribed jurisdiction. (Its former name, United States Court of Customs and Patent Appeals, affords a partial clue although its jurisdiction is broader than only those subject matters.)

Let's compare the Ninth Circuit with the other ten United States, or Federal, Circuits, using rough figures. Remember that we are discussing only the Court of Appeals, not the United States District Courts (which are the Federal trial courts) within the Ninth Circuit. These lesser, but important, Courts inevitably are spread far and widely apart - say, from Tucson to Anchorage!

Geography: The Ninth Circuit covers about 40 per cent of greater America - nine States (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington) and two Territories (Guam and Northern Mariana Islands).

Population: That expanse of area houses in the 58 - 59 million range and includes some of the fastest growing States - e.g., Arizona, California, Nevada, Washington.

Number of Judges: Twenty-eight authorized by law, almost double that of any other Circuit Court of Appeals - plus, as with any Circuit, some Senior Judges still sitting, but in the Ninth, there are twenty-three, for a total as of this writing of fifty-one Circuit or appellate Judges. (Of course, like all Federal Circuit Courts, a three-Judge panel normally hears oral argument. But imagine an en banc oral argument in front of twenty-three to twenty-eight Judges, the whole Court in active status, which needless to say doesn't happen. Instead, the Ninth's panel for an en banc oral argument is eleven Judges, chosen at random; thus, six Judges purportedly may speak as the entire Court.)

Many observers would conclude that it makes little sense for one of eleven Federal Circuits to be so disproportionately gigantic. There is precedent for dividing a Circuit: The present Fifth and Eleventh Circuits, together comprising most of what would be considered the South (less the Carolinas and Virginia, which are in the Fourth Circuit), as recently as 1981 were created out of the prior Fifth Circuit. In earlier history, and as late as 1948, Circuit boundaries many times were changed and new Circuits created. Because Judges of, and in, the Ninth Circuit, and the Bar practicing there, are not wholly in accord, let's skip other apparent problems - lesser judicial congeniality, greater administrative tasks, a larger Court bureaucracy, a slower docket, the need to hold oral arguments in numerous cities and States, so forth.

What, then is the other argument for splitting the Ninth Circuit? Simply stated, it's dissatisfaction with much Ninth Circuit jurisprudence. Not surprisingly, the Supreme Court reverses a judgment of the Ninth more often than that of any other Circuit. Maybe surprisingly, the reversal percentage also is higher.

Now we reach the other argument. The Ninth Circuit is too activist, imaginative, innovative, liberal - whatever adjective one cares to apply. Indeed, pundits who rate Circuits, difficult and somewhat arbitrary though that task may be, almost invariably rate the Ninth as the most "liberal" (or whatever adjective they choose, some intending a compliment, more a condemnation) and the Fourth as the most "conservative" (same word game). (By way of disclosure, this writer evaluates the Ninth, on balance, as the least restrained and is grateful the other ten Circuits, averaged, are not so wild. That is because this writer, two law degrees and almost fifty-two years at the Bar, believes an appellate court should adjudicate an appeal, to use lay language, upon the strictest construction of the evidence, the original intent of the regulation, statute or Constitution, reaching no non-essential issue - all with a view to doing justice upon the facts and the law as they are, not as the Court may have preferred them to be.)

Because many observers don't approve on balance Ninth Circuit jurisprudence the perennial Congressional effort to split the Circuit continues. The Ninth Circuit often cooperates by handing down an incendiary decision. The most recent, if regrettably probably not the last, involves California's Palmdale School District, which surveyed its students as young as six years about all kinds of sexual subjects. Not surprisingly, some parents strenuously objected; got nowhere in what should have been the Palmdale and California school-administrative processes. They sued in United States District Court; that Court dismissed for failure to state a Federal "claim upon which relief could be granted and dismissed the state claims without prejudice to their right to re-file in state court . . ." They appealed to the United States Court of Appeals for the Ninth Circuit. The Opinion of the Court " . . . hold[s] that there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children . . ." [Emphasis in original.] There is no need for this paper to analyze the decision or its rationale or even to indulge the obvious possibility that the Court could have affirmed the District Court's dismissal upon federalist (sometimes called "states' rights") grounds without expounding about parents' rights.

The point is that once again a Ninth Circuit panel has rendered a decision which fires up those would split the Circuit.

Whether splitting the Circuit would curb the untamed expansiveness of some of its decisions is questionable. Decisions are the products of Judges, not of geography. At the least splitting the Ninth would reduce the applicability of disfavored holdings and sociological rhetoric to the inhabitants of whichever smaller Circuit issued such a decision.

More significantly, the five (of twenty-eight) vacancies on the Ninth Circuit need to be filled, whether in one Circuit or split Circuits - and filed with strict constructionists.

In sum, there are persuasive reasons to split the gigantic Ninth Circuit, following precedents as to other Circuits and legislation introduced as early as 1940. If less Palmdale judicial rhetoric resulted that would be a worthy byproduct of the split.

Marion Edwyn Harrison, Esq. is President of, and Counsel to, the Free Congress Foundation.

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