• Mario Nicolais

A seventh-ish state to the 10th Circuit?

Gov. Doug Ducey of Arizona wants out of the 9th Circuit Court of Appeals. Along with allies such as U.S. Sen. Jeff Flake and former U.S. Sen. Jon Kyl, both of Arizona, Ducey wants federal appeals in the state to wind up somewhere other than the San Francisco courthouse that currently receives them. One of the likely landing spots is the 10th Circuit.


If you only vaguely understand the structure of the byzantine federal appellate system, you are ahead of the curve. If you are familiar with their idiosyncrasies, you are either a lawyer or a post-trial party to a lawsuit.


Federal courts of appeal are the intermediary between federal trial courts and the U.S. Supreme Court. There are 13 courts of appeal, each referred to as a circuit. The country and its territories are divided among 12 of the circuits (the Federal Circuit has nationwide jurisdiction on certain, specialized matters) along geographic lines. Usually those lines follow state lines, but not always. For example, the 10th Circuit covers all of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. But it also includes portions of Yellowstone National Park extending into Montana and Idaho.


That isn’t confusing at all, is it?


And that geographical explanation doesn’t even touch on the differences in jurisprudence, caseload and reputation. Which brings us back to the 9th Circuit and Gov. Ducey.


Among all federal courts of appeal, the 9th Circuit is known for its political liberalism, enormous caseload, and high reversal rate. It covers nine states and two territories. However, under the federal court system, each state is not equal. In fact, there are four separate federal district courts from California within the 9th Circuit. Washington, with two districts, is the only other state with more than one. Consequently, the 9th Circuit is regularly bogged down with appeals emanating from California. That means other states, like Arizona, get short shrift.


“The 9th Circuit is by far the most overturned and overburdened court in the country, with a 77-percent reversal rate,” said Gov. Ducey in a statement to The Arizona Republic newspaper. “In 2010, it had three times as many reversals as most circuits had cases before the Supreme Court.”


Effectively, every other state sits behind the congested docket created by California. What’s more, they are likely to appear before an appellate panel substantially dissimilar in regional outlook and are more likely to end up appealing the outcome to the Supreme Court. It is wasted resources in the form of time, money and psychological effect. No wonder Arizona has had enough.


The natural geographic nexus between Arizona and the 10th Circuit is appealing at first blush. It shares borders with three of the states, if you include the corner of Colorado. Phoenix is slightly closer to Denver than San Francisco. Plus, the political alignment of the states seems to hew much more closely.


There are drawbacks, though. To start, introducing Arizona’s docket into the 10th Circuit would necessarily have a corresponding negative effect on current time-frames for appeals. Phoenix would immediately become the largest single city in the 10th Circuit, shifting the population density substantially away from the court’s current home in Denver. And nobody quite knows how shifting between governing precedent between the circuits would affect Arizona.


Alternative proposals would instead split the 9th Circuit into two in order to manage the issue for all jurisdictions. However, all proposals currently face substantial pushback from powerful groups such as the California bar association and sitting judges unwilling to accept change.


While change isn’t imminent, the 10th Circuit should keep a watchful eye pointed to the southwest.


Read this column from The Colorado Statesman online in ColoradoPolitics.com.

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