Sen. Lisa Murkowski Urges Congress to Split the Ninth Circuit Court of Appeals

Press Release

SEN. LISA MURKOWSKI URGES CONGRESS TO SPLIT THE NINTH CIRCUIT
COURT OF APPEALS

Murkowski Joined by Ninth Circuit Judges to Advocate for a Circuit Division

Saying that it would be irresponsible not to take action to correct the overwhelming caseload and backlogs that affect the Ninth Circuit Court of Appeals, Sen. Lisa Murkowski today urged that the Senate take up her bill to divide the Circuit.

Sen. Murkowski took part in a Senate Judiciary Committee hearing today on her and Sen. John Ensign's (R-NV) legislation that would create a new Twelfth Circuit from the current Ninth.

"Last year, the Ninth Circuit had a caseload nearly 60 percent larger than the next largest circuit," Sen. Murkowski said. "This causes delays in a Circuit where the average disposition time is now five months longer than the national average." "The tidal wave of population growth is coming," Murkowski said noting that the population in the jurisdiction of the Ninth, at 58 million people, is more than double the population of most other Circuits. The Ninth Circuit also contains the fastest growing states by population in the nation. "The numbers speak for themselves. Right now the caseload is overwhelming, and we can only anticipate that it will get worse. It would be irresponsible for us not to act and an irresponsible use of Congress' authority to manage the courts if we were to do nothing."

Under Sen. Murkowski's legislation, the new Ninth Circuit would be comprised of California, Hawaii and the Pacific Islands and the new Twelfth Circuit would contain Alaska, Washington, Oregon, Idaho, Montana, Nevada and Arizona.

Judge Andrew Kleinfeld, a Ninth Circuit Court Judge from Fairbanks, appeared at the hearing to argue for a split in the Circuit. He noted that the enormous size of the Circuit and the high percentage of its jurisdictional population occurring in one state, California, endangers the ability of judges to stay abreast of the specific legal issues facing Alaska. "Right now a judge sits in Alaska once in every eight years. There is no way that a Ninth Circuit judge can be that knowledgeable with the unique federal law in Alaska, sitting that infrequently," Kleinfeld said.

"We're too big to hear cases en banc and too big to read each others decisions. The draws on our court, combined with its size, and partial en banc make the law a game of chance in the Ninth Circuit. Law should not be a game of chance"

"The new Ninth and Twelfth Circuits would have more manageable jurisdictional populations and caseloads. Dividing the Court is a solution to the problem of delayed justice that has precedent and is long overdue," Murkowski said. "The original Eighth Circuit was divided in 1929, the former Fifth in 1980. "Despite what opponents say, splitting the Ninth has been and is supported by legislators, lawyers, the Department of Justice, Appellate and Supreme Court Justices."

Also advocating for a split, Ninth Circuit Judge Diarmuid O'Scannlain noted that support for a division has grown as the caseload and population of the Ninth have increased. The Judicial Conference of the United States is now neutral as to whether a split should occur, a departure from prior policy of opposing a split, and the Department of Justice now publicly supports the creation of new circuits.

"Simply put, the Ninth Circuit is too big," O'Scannlain said. "It is time now to take the prudent, well established course and bring the Ninth Circuit into line with the rest of the Circuits in the federal judicial system. Restructuring large circuits is the natural process of judicial evolution.

"The enormity of my court is undeniable. The caseload is killing us. As long as one accepts the underlying premise of appellate circuits, that discrete decision making units provide absolute benefits to the administration of justice, there is no denying that the Ninth must be reorganized."

Judge Richard Tallman, also advocating for a split, noted that unlike other Circuits, the Ninth is forced to borrow judges from around the United States -- an estimated 200 judges will have to be borrowed by the Circuit next year. "This impacts the development of jurisprudence in the Ninth," Tallman said.

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