[Congressional Record Volume 143, Number 31 (Wednesday, March 12, 1997)]
[Senate]
[Pages S2210-S2212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. MURKOWSKI (for himself, Mr. Stevens, Mr. Gorton, Mr. 
        Burns, Mr. Craig, Mr. Kempthorne, and Mr. Smith of Oregon):
  S. 431. A bill to amend title 28, United States Code, to divide the 
ninth judicial circuit of the United States into two circuits, and for 
other purposes; to the Committee on the Judiciary.


     the ninth circuit court of appeals reorganization act of 1997

  Mr. MURKOWSKI. Mr. President, today I am pleased to be joined by my 
colleagues, Senators Stevens, Gorton, Burns, Craig, Kempthorne, and 
Senator Smith of Oregon, in introducing the Ninth Circuit Court of 
Appeals Reorganization Act of 1997.
  Our legislation will create a new twelfth circuit comprised of 
Alaska, Washington, Oregon, Idaho, and Montana. This legislation will 
ease the current burdens of the ninth circuit, as well as effectively 
create a new northwest circuit that is historically, economically, 
culturally, and philosophically united.

[[Page S2211]]

  Mr. President, one look at the contours of the ninth circuit reveals 
the need for this reorganization. Stretching from the Arctic Circle to 
the Mexican border, past the tropics of Hawaii and across the 
international dateline to Guam and the Marianna Islands, by any means 
of measurement, the ninth circuit is the largest of all U.S. circuit 
courts of appeal.
  There is also no denying the ninth circuit's mammoth caseload. It 
serves a population of more than 45 million people, well over one-third 
more than the next largest circuit.
  Last year, the ninth circuit had an astounding 7,146 new filings.
  By 2010, the Census Bureau estimates that the ninth circuit's 
population will be more than 63 million--a 40-percent increase in just 
13 years, which inevitably will create an even more daunting caseload.
  We believe that this legislation is long overdue. Because of its 
size, the entire appellate process in the ninth circuit is the second 
slowest in the Nation. As former Chief Judge Wallace of the ninth 
circuit stated: ``It takes about 4 months longer to complete an appeal 
in our court as compared to the national median time.'' Mr. President, 
what this means is that while the national median time for filing a 
notice of appeal to final disposition is 315 days, the ninth circuit 
median time is 1 year and 2 months.
  Furthermore, the massive size of the ninth circuit often results in a 
decrease in the ability to keep abreast of legal developments within 
its own jurisdiction. This unwieldy caseload creates an inconsistency 
in constitutional interpretation. In fact, ninth circuit cases have an 
extraordinarily high reversal rate by the Supreme Court. During the 
Supreme Court's 1994-95 session, the Supreme Court overturned 82 
percent of the ninth circuit cases heard by the Court. This lack of 
constitutional consistency discourages settlements and leads to 
unnecessary litigation.
  Mr. President, the legislation I am introducing is not novel. Since 
the day the circuit was founded, over a century ago, there were 
discussions of a split. Nearly a quarter century ago, in 1973, the 
Congressional Commission on the Revision of the Federal Court of 
Appellate System recommended that the ninth circuit be divided.
  Additionally, the American Bar Association has adopted a resolution 
expressing the benefits of dividing the ninth district.
  Since 1983, Senator Gorton and many others in this Chamber have 
initiated legislation to split the circuit.
  There have been Senate hearings. In December 1995, Senator Hatch 
stated in a committee report that:

       The legislative history, in conjunction with available 
     statistics and research concerning the Ninth Circuit, 
     provides an ample record for an informed decision at this 
     point as to whether to divide the Ninth Circuit . . . Upon 
     careful consideration the time has indeed come.

  Furthermore, splitting a circuit to respond to caseload and 
population growth is by no means unprecedented. Congress divided the 
original eighth circuit to create the tenth circuit in 1929, and 
divided the former fifth circuit to create the 11th circuit in 1980.
  The legislation that I and my colleagues introduce today is the 
sensible reorganization of the ninth circuit. The new ninth circuit 
would embrace California, Nevada, Arizona, Hawaii, and the U.S. 
territories. And the new 12th circuit would be comprised solely of 
States in the Northwest region. Most importantly, this split would 
respect the economic, historical, cultural, and legal ties which exist 
between the States involved.
  Mr. President, no one court can effectively exercise its power in an 
area that extends from the Arctic Circle to the tropics. The 
legislation introduction today will create a regional commonality which 
will lead to greater consistency and dependency in legal decisions.
  Mr. President, we have waited long enough. The 45 million residents 
of the ninth circuit are the persons that suffer. Many wait years 
before cases are heard and decided, prompting many to forego the entire 
appellate process. In brief, the ninth circuit has become a circuit 
where justice is not swift and not always served.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 431

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Ninth Circuit Court of 
     Appeals Reorganization Act of 1997''.

     SEC. 2. NUMBER AND COMPOSITION OF CIRCUITS.

       Section 41 of title 28, United States Code, is amended--
       (1) in the matter before the table, by striking 
     ``thirteen'' and inserting ``fourteen'';
       (2) in the table, by striking the item relating to the 
     ninth circuit and inserting the following new item:

Arizona, California, Hawaii, Nevada, Guam, Northern Mariana Islands.'';
       and
       (3) between the last 2 items of the table, by inserting the 
     following new item:

Alaska, Idaho, Montana, Oregon, Washington.''..........................

     SEC. 3. NUMBER OF CIRCUIT JUDGES.

       The table in section 44(a) of title 28, United States Code, 
     is amended--
       (1) by striking the item relating to the ninth circuit and 
     inserting the following new item:

``Ninth...........................................................19'';

       and
       (2) by inserting between the last 2 items at the end 
     thereof the following new item:

``Twelfth..........................................................7''.

     SEC. 4. PLACES OF CIRCUIT COURT.

       The table in section 48 of title 28, United States Code, is 
     amended--
       (1) by striking the item relating to the ninth circuit and 
     inserting the following new item:

San Francisco, Los Angeles.'';.........................................
       and
       (2) by inserting between the last 2 items at the end 
     thereof the following new item:

Portland, Seattle.''...................................................

     SEC. 5. ASSIGNMENT OF CIRCUIT JUDGES.

       Each circuit judge in regular active service of the former 
     ninth circuit whose official station on the day before the 
     effective date of this Act--
       (1) is in Arizona, California, Hawaii, Nevada, Guam, or the 
     Northern Mariana Islands is assigned as a circuit judge of 
     the new ninth circuit; and
       (2) is in Alaska, Idaho, Montana, Oregon, or Washington is 
     assigned as a circuit judge of the twelfth circuit.

     SEC. 6. ELECTION OF ASSIGNMENT BY SENIOR JUDGES.

       Each judge who is a senior judge of the former ninth 
     circuit on the day before the effective date of this Act may 
     elect to be assigned to the new ninth circuit or to the 
     twelfth circuit and shall notify the Director of the 
     Administrative Office of the United States Courts of such 
     election.

     SEC. 7. SENIORITY OF JUDGES.

       The seniority of each judge--
       (1) who is assigned under section 5 of this Act; or
       (2) who elects to be assigned under section 6 of this Act;

     shall run from the date of commission of such judge as a 
     judge of the former ninth circuit.

     SEC. 8. APPLICATION TO CASES.

       The provisions of the following paragraphs of this section 
     apply to any case in which, on the day before the effective 
     date of this Act, an appeal or other proceeding has been 
     filed with the former ninth circuit:
       (1) If the matter has been submitted for decision, further 
     proceedings in respect of the matter shall be had in the same 
     manner and with the same effect as if this Act had not been 
     enacted.
       (2) If the matter has not been submitted for decision, the 
     appeal or proceeding, together with the original papers, 
     printed records, and record entries duly certified, shall, by 
     appropriate orders, be transferred to the court to which it 
     would have gone had this Act been in full force and effect at 
     the time such appeal was taken or other proceeding commenced, 
     and further proceedings in respect of the case shall be had 
     in the same manner and with the same effect as if the appeal 
     or other proceeding had been filed in such court.
       (3) A petition for rehearing or a petition for rehearing en 
     banc in a matter decided before the effective date of this 
     Act, or submitted before the effective date of this Act and 
     decided on or after the effective date as provided in 
     paragraph (1) of this section, shall be treated in the same 
     manner and with the same effect as though this Act had not 
     been enacted. If a petition for rehearing en banc is granted, 
     the matter shall be reheard by a court comprised as though 
     this Act had not been enacted.

     SEC. 9. DEFINITIONS.

       For purposes of this Act, the term--
       (1) ``former ninth circuit'' means the ninth judicial 
     circuit of the United States as in existence on the day 
     before the effective date of this Act;
       (2) ``new ninth circuit'' means the ninth judicial circuit 
     of the United States established by the amendment made by 
     section 2(2) of this Act; and
       (3) ``twelfth circuit'' means the twelfth judicial circuit 
     of the United States established by the amendment made by 
     section 2(3) of this Act.

[[Page S2212]]

     SEC. 10. ADMINISTRATION.

       The court of appeals for the ninth circuit as constituted 
     on the day before the effective date of this Act may take 
     such administrative action as may be required to carry out 
     this Act. Such court shall cease to exist for administrative 
     purposes on July 1, 1999.

     SEC. 11. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall become 
     effective on October 1, 1997.
                                 ______