NEWS

Gov. Doug Ducey wants Arizona out of the 9th Circuit

Ducey mainly is focusing on the logistical problems related to the court's massive caseload.

Dan Nowicki
The Republic | azcentral.com
Gov. Doug Ducey speaks during his inauguration, wherein he promised to deliver a strong, healthy Arizona economy.
  • Gov. Doug Ducey is leading a new push to remove Arizona from the 9th U.S. Circuit Court of Appeals
  • Ducey, picking up on an idea from former Sen. Jon Kyl, cites the circuit's caseload and backlog
  • Ducey is working with Sen. Jeff Flake and Rep. Matt Salmon on legislation to address the issue

Editor's note: The story has been updated to correct the number of pending cases before the 9th U.S. Circuit Court of Appeals.

Gov. Doug Ducey is spearheading a new push to remove Arizona from the overworked and backlogged 9th U.S. Circuit Court of Appeals.

Citing roughly 13,000 pending court cases, nearly three times the next busiest circuit's caseload, Ducey is working with fellow Arizona Republicans U.S. Sen. Jeff Flake and U.S. Rep. Matt Salmon on federal legislation that would revisit the idea of restructuring the 9th Circuit so that the state could count on swifter and more efficient judicial service.

The San Francisco-based and California-dominated 9th Circuit also includes Oregon, Washington, Hawaii, Alaska, Nevada, Idaho and Montana. The 9th Circuit has long been derided as too liberal by some conservatives.

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

Ducey mainly is focusing on the logistical problems related to what he called the court's "voluminous" caseload.

In an Oct. 30 letter to U.S. House Speaker Paul Ryan, R-Wis., and U.S. Senate Majority Leader Mitch McConnell, R-Ky., Ducey laid out the case for reforming the 9th Circuit, noting that recommendations for changes date back at least to 1973. He pointed to retired Supreme Court Justice Sandra Day O'Connor's previous suggestion that Arizona be moved to the 10th U.S. Circuit Court of Appeals, which has jurisdiction over Colorado, New Mexico, Kansas, Oklahoma, Wyoming and Utah as well as parts of Yellowstone National Park in Montana and Idaho.

Montini: The REAL reason Ducey would dump 9th Circuit

Ducey asked Ryan and McConnell to "entertain appropriate legislation" and convene hearings for the "long-overdue reform."

"To that end, Congress should specifically consider reorganizing the Ninth Circuit by realigning the District of Arizona with the Tenth Circuit, or by creating a new circuit court of appeals consisting of Arizona and other non-coastal states," Ducey wrote.

Ducey was alerted to the 9th Circuit situation by former U.S. Sen. Jon Kyl, R-Ariz., who oversaw Ducey's transition into office following his 2014 election. Kyl, who served on the Senate Judiciary Committee, worked for years on the 9th Circuit issue, and offered a number of legislative proposals. Hearings were held in the mid-2000s on proposals to split the 9th Circuit, but ultimately Congress did not agree on a plan.

In 2007, Kyl collaborated with U.S. Sen. Dianne Feinstein, D-Calif., another influential Judiciary Committee member, to get one more judge added to the circuit. That brought the number of active judgeships to its current 29. At the time, adding the extra judge was viewed as a minor gesture to help address the court's workload.

Defenders of the 9th Circuit argue that while it does have a heavy caseload, the circuit also has more judges and panels of judges to process the cases.

Any legislation to reform the 9th Circuit introduced this year could wind up being largely symbolic given the long-standing political hurdles on Capitol Hill.

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"It's very hard to do politically because you're fighting California," Kyl, who did not seek re-election in 2012, told The Arizona Republic on Wednesday.

"... The California bar association people oppose it. They just have a different view," Kyl said. "They would rather be the big dog in the biggest circuit. We find ourselves at a disadvantage in that situation. The circuit is so big; it's bigger than all of the other circuits and it's bigger than some of the other circuits combined. They have a huge workload, and it's a very unruly organization to try to manage properly."

Kyl said the real solution is to split the 9th Circuit, rather than carving out Arizona and adding the state to the 10th Circuit.

"You don't want to go into the 10th Circuit -- believe me, the 10th Circuit doesn't want that," Kyl said. "That's Albuquerque and Denver and so on, and they like being the big dogs in their circuit. And besides that, the 9th is so big that even when you divide it in half, you're still bigger than some of the other circuits."

Others involved in the latest effort agree that it's a debate worth having.

Flake told The Republic he believes the odds of success are better than they've been in the past, but acknowledged obstacles, "mostly judges who don't want to give up any of their portfolio."

There's no reason why the people of Arizona should have to put up with delayed justice, Flake said.

On the House side, U.S. Rep. Darrell Issa, R-Calif., has indicated to Salmon that he is willing to hold a hearing on the topic. Issa, a friend of Salmon's, is the chairman of the relevant House Judiciary Subcommittee on Courts, Intellectual Property and the Internet.

For some, Arizona Gov. Ducey's rhetoric not matched by his budget