Appeals plan: More Nevada cases heard by state judges

Bill Gang

Thursday, Oct. 8, 1998 | 11:34 a.m.

The proposed breakup of the sprawling U.S. 9th Circuit Court of Appeals could result in more Nevada cases being heard by Nevada judges, UNLV law school professor Carl Tobias predicted.

A congressionally chartered commission Wednesday released its study of the 9th Circuit, recommending the court and its 28 judgships be sub-divided into three parts but not dismantled.

In the plan, Nevada would be in the division that would include central and northern California, Hawaii and the Pacific islands. The nine or 10 judges in that group, would include the two from Nevada -- Proctor Hug and Melvin Brunetti.

Each court case appealed to the 9th Circuit is assigned to a three-judge panel at random. With a smaller number of judges in Nevada's division, Tobias said the chances would be "pretty high" of a Nevada judge getting the nod on any given case.

The commission was exploring how to deal with the seemingly unwieldy size of the 9th Circuit -- which handles appeal issues for nine western states -- and the perception among conservatives that it is too liberal.

The 9th Circuit is one of 13 such appeals courts in the country that comprise the middle tier of the federal judiciary - between trial courts and the Supreme Court. With 28 judges, it is huge compared with the other circuits, which usually have no more than 12 judgeships.

Tobias said the study was motivated by the desire of representatives from several northwestern states -- Alaska, Washington, Oregon, Montana, Idaho-- plus Arizona to have their own circuit.

It would be the first time a circuit court is split apart.

The congressional commission is the outgrowth of a decades-old debate over the best way to run the 9th Circuit. But the report's suggestion of subdividing the 9th Circuit may prove too modest for members of Congress who have advocated splitting it into several new judicial circuits.

Yet Tobias said there is logic to the subdivision approach. He added it also would keep intact the circuit's administrative structure, which he said is working well.

The UNLV law school professor said a problem exists in the appeal court process when the different circuit courts making contrary rulings on the same legal issue. That ultimately requires a definitive ruling from the U.S. Supreme Court.

With more circuits, there is the potential for more contradictory decisions -- rulings that differ in interpreting the same federal statute or constitutional provision, Tobias noted.

That issue would be minimized by breaking the 9th Circuit into divisions rather than new circuits, according to the commission. It's draft report suggests that Congress allow federal appeals courts with more than 13 judgeships to organize themselves into such divisions, and require it when any appeals court's membership exceeds 17 judges.

The 91-page draft report proposes creating a new court to resolve any conflicting rulings within the divisions.

The commission, which must submit its final report to Congress by Dec. 19, said it will accept public comment on its draft report until Nov. 6.

Tobias predicted the recommendations would be "a hot potato in Washington" with opposition of all kinds expected.

An ultimate decision by Congress could take years "especially if the president dislikes the plan," the professor added.

"It's unclear how it will shake out," he said. "It will take time for hearings, and it is unlikely the issue will be resolved during the Clinton presidency."

While Tobias said he does not envision a major philosophical shift in any division of the court under the new plan, he said whether there should even be a split could become a campaign issue in California during the next presidential election. That is because any plan would have to be passed by Congress and ratified by the president.

The draft, Tobias said, is "a comprehensive, careful report, but we'll have to wait to see if Congress finds that it works."

In the report, the three divisions of the 9th Circuit would be:

-- Northern Division to include Alaska, Idaho, Montana, Oregon and Washington.

-- Middle Division to include part of California and Hawaii, Nevada and the Pacific islands.

-- Southern Division to include Southern California and Arizona.

Each division would review appeals from trial courts in its geographic area and, according to the report, "would function as a semi-autonomous decisional unit" hearing appeals either in three-judge panels or by all the judges within that division.

A so-called Circuit Division would be created to resolve the inevitable division conflicts.

That court would be comprised of the 9th Circuit's chief judge, the presiding judge of each of the three divisions and one other appellate judge from each of the three divisions.

The Circuit Division would have absolute discretion when choosing what appeals to hear, as long as a direct conflict existed among the division courts.

The report states: "The Circuit Division would not have jurisdiction to review a decision by a regional division on the ground that it is considered to be incorrect or unsound; its only authority would be to resolve square inter-divisional conflicts."

Otherwise, a three-judge division court panel's decision could be appealed to the full division court or to the Supreme Court. No longer would any case be heard by the entire 9th Circuit court.

The five-member commission created by Congress last year is chaired by retired Supreme Court Justice Byron R. White.