How Appealing Extra

How Appealing Extra

Wednesday, August 23, 2006

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August 23, 2006

Judge Denies He Had Financial Interest in Two Cases' Litigants

By Amelia Hansen
Daily Journal Staff Writer

Ninth U.S. Circuit Court of Appeals Judge Harry Pregerson defended himself Tuesday against allegations that he had a financial conflict in two trademark cases he ruled in last year.

Last month, an attorney for M2 Software argued that Pregerson's 2005 rulings against a company called M2 Software -and in favor of Time Warner Inc.-should be thrown out because the judge owned stock in the massive multi-media conglomerate.

But in a written order denying M2 Software's request to vacate the rulings, released Tuesday afternoon, Pregerson took the opportunity to "set the matter straight."

"I had no interest 'however small' in the subject matter in controversy," Pregerson wrote in a concurrence to the court's order.

Earlier this year, The Washington Post published a story about judges whose disclosure statements showed that they had a "financial interest in the litigants in their courtrooms."

Pregerson, The Post pointed out, had shares in Time Inc. and had adjudicated a case with AOL/Time Warner Inc. as a defendant.

Pregerson told The Post he did not realize he had a conflict, perhaps because he bought AOL stock before it merged with Time Inc.

"'I just wasn't paying attention,'" Pregerson, an 82-year-old Carter appointee, was quoted as saying by The Post.

Mark Pettinari was paying attention.

Pettinari represented M2 Software in a pair of suits challenging the alleged infringement of the M2 trademark. M2 Software v. Madacy Entertainment, 03-55957 and M2 Software v. M2 Communications, 03-56602.

One defendant, Madacy Entertainment, is described in court records as a "company that specializes in low-price collections of recorded music," created a new division called "M2 Entertainment." The other defendant, M2 Communications, produces Christian music.

Writing for the same unanimous 9th Circuit panel in both cases, Pregerson affirmed the findings of the District Court, which held there was no likelihood of confusing M2 Software and the other companies.

Pettinari did not immediately return a call for comment Tuesday.

But according to news reports, the San Francisco attorney said the defendants in the lawsuits are tied to Time Warner - that a company called "Gaylord Entertainment" sold its M2 Communications division to Time Warner and that Time Warner is the manufacturer of Madacy's Christian music CDs.

Tracing the link between Time Warner Inc. and the defendants, Pregerson wrote Tuesday that he didn't know the company had an option - which it "never exercised," he pointed out - to purchase shares of Warner Music.

Warner Music, Pregerson wrote, owned Word Entertainment, which had an exclusive distribution contract with M2 Communications.

"Such an indirect interest does not require recusal," he stated.

In a separate concurring opinion, Senior Judge Robert R. Beezer - who joined in both of Pregerson's opinions against M2 Software - wrote that the court's jurisdiction to vacate its own ruling is to be "exercised only in extraordinary circumstances."

"Nothing presented by M2 Software suggests perpetration of fraud, gross misconduct or that enforcement of the judgment would be manifestly unconscionable," Beezer wrote.

Thursday, August 17, 2006

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August 17, 2006


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Environmental activists recently voiced alarm that if Congress splits the 9th U.S. Court of Appeals into two courts, the new 12th Circuit will be more conservative and business-friendly.

If so, the normally outspoken corporate lobby is keeping unusually quiet about it.

A close review of testimony and letters to congressional committees and an informal survey of trade groups reveals that the business community is largely staying on the sidelines while lawmakers spar over the fate of the nation's largest and busiest circuit.

Some business interests actually favor keeping the nine-state 9th Circuit intact, while most have staked out no public position at all.

What little input has come from the business community is far afield from the claim made by liberal activists that the creation of a 12th Circuit, encompassing a swath of western states, will give property rights advocates an upper hand in high-stakes land-use cases involving fishing, mining, timber and other "extraction" issues.

Instead, the most prominent business voice in the current debate is the Seattle-based former general counsel of the Microsoft Corp. and president-elect of the American Bar Association, William Neukom.

He is urging Congress to leave the 9th Circuit as it is.

California and Hawaii would remain in the 9th Circuit if Congress approves a proposed split, while seven other western states would go into the newly formed 12th Circuit.

A split is bad, Neukom wrote last month to senators in a letter co-signed by veteran San Francisco business litigator Michael Traynor, because it "is unlikely to serve the interests of the many businesses and corporations that are so important to the economy of the West Coast."

The two lawyers emphasized a continuing need for the law in western states to be settled and uniform. The possibility of two courts reaching divergent conclusions on common issues means lawyers will have to spend more time keeping abreast of the law, they added.

"A single federal appellate court for the West Coast minimizes the risk that the law of intellectual property, maritime trade, labor relations, banking, or other business matters will be different in San Diego and Seattle," they wrote.

Traynor, a partner with Cooley Godward for 37 years, said in an interview that he sees the proposal purely as a partisan endeavor by Republicans in response to certain high-profile 9th Circuit decisions that angered conservatives.

"I think the primary motivations are partisan," he said. "I don't know what business lobbying there is, if any, on this issue."

Neukom did not respond to requests for comment.

In Washington, D.C., influential trade associations say they are simply not focusing on the split.

The U.S. Chamber of Commerce and the National Association of Manufacturers, heavy hitters on other legal issues, such as tort reform, are both sitting out the fight.

"We are highly critical of the 9th Circuit, but we are not on record or suggesting that the court be split," said a spokesman for the manufacturers' association.

Ditto for trade groups that represent extraction industries that are powerful voices in some of the states that would shift to the 12th Circuit. Among them are the National Mining Association and the National Fisheries Institute.

Spokesmen for both groups said they have no position on the issue and declined to comment further.

"I don't think many folks see it as an issue," said a former Republican staffer on the Senate Judiciary Committee.

As one of Washington, D.C.'s most powerful lobbies, the business community is plenty capable of making itself heard on court-related issues.

A case in point is tort reform. Major industries and groups like the National Association of Manufacturers have bankrolled expensive public relations campaigns in support of legislation to restrict product liability and medical malpractice litigation.

These efforts include setting up Web sites, hiring public relations consultants and lobbyists, and holding high-profile media events on Capitol Hill featuring prominent members of Congress.

By contrast, the 9th Circuit split proposal has remained under the radar, receiving little attention in the mainstream media.

"It makes sense to put their PR and lobbying bucks on issues that directly affect their operations," said Arthur Hellman, a law professor at the University of Pittsburgh who closely tracks 9th Circuit politics. "I would not have thought they would want to use their firepower on splitting the 9th Circuit."

He added that the notion of a new 12th Circuit siding with the business community more than the existing 9th Circuit is "distant and speculative."

The only lobbying firm known to be actively engaged in the split debate was hired by former California State Bar president Harvey I. Saferstein of Mintz Levin who is fighting against the current legislation on behalf of a group of West Coast business lawyers who call themselves "Friends of the 9th Circuit."

The group includes Eric George, a well-connected Beverly Hills Republican lawyer who advises the Bush administration on federal judicial appointments in California.

The lobbying firm hired by Saferstein is Washington, D.C.-based Parry, Romani, DeConcini & Symms.

Among lawmakers, all the main supporters of the split legislation are senators and representatives from the states that would be in the new 12th Circuit. Sen. John Ensign, R-Nev., sponsored the Senate bill, while Rep. Mike Simpson, R-Idaho, introduced the House version. Other vocal supporters include Sen. Jon Kyl, R-Ariz.; Sen. Gordon Smith, R-Or.; Sen. Lisa Murkowski, R-Alaska; and Conrad Burns, R-Mont.

The pro-split chorus outside Congress has been led by academics, court-watchers and some judges on the court, chief among them Judge Diarmuid O'Scannlain, a Reagan appointee who sits in Portland, Ore.

O'Scannlain said in an e-mail that he is unaware of any outside interest groups lobbying of Congress in support of the split.

In public statements, supporters of a split have argued that the 9th Circuit, by far the largest of the nation's 11 regional appellate districts, has grown too big to maintain administrative efficiency.

Critics have accused the split supporters of harboring an ideological agenda - and they point to frequent complaints from conservatives that the 9th Circuit is too liberal.

Ensign, for example, made reference to the now-infamous 2002 9th Circuit ruling striking down the words "under God" from the Pledge of Allegiance in the same press release that announced his court-splitting bill last year.

"Many of the court's rulings reflect a set of values that are at odds with the majority of the people of Nevada," he said in the statement. "I look forward to seeing Nevada's residents served by a new court in a new location with a viewpoint closer to their own."

California's senators, Barbara Boxer and Dianne Feinstein, both Democrats, are on the record opposing a split. And so are some of the state's prominent Republicans, including Gov. Arnold Schwarzenegger and former Gov. Pete Wilson.

With a Senate Judiciary Committee hearing on the proposed split scheduled for next month, some opponents see the absence of corporate lobbying as an indication that the legislation is really just an appeal to conservative grass-roots activists.

Glenn Sugameli is senior legislative counsel for Earthjustice, the environmental advocacy group that last month warned the media that the 12th Circuit would be a gold mine for business interests.

But in an interview this week, Sugameli acknowledged that his usual adversaries from corporate America are nowhere to be seen on the lobbying front.

Saturday, August 12, 2006

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August 14, 2006

Seminar Program Keeps Judges in Dark on Donors; Some See Ethical Issue With Jurists Unaware Of Corporate Litigants' Hand in Free Courses

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Federal appellate Judge Andrew J. Kleinfeld may be best known for writing a decision that was music to the ears of oil giant ExxonMobil Corp.

That was five years ago, when the 9th U.S. Circuit Court of Appeals ruled that $5 billion in punitive damages amounted to an excessive jury award against Exxon for its role in the huge Alaska oil spill of 1989.

But despite his participation in such a high-profile case, which continues to this day, the Fairbanks, Alaska-based jurist said recently he did not know that Exxon has for years been giving tens of thousands of dollars to a university-affiliated judicial education program where he studied and now sits on an advisory board.

His unawareness is not an accident: The Law and Economics Center based at Virginia's George Mason University has a strict policy of not telling judges where the funding comes from for the all-expense paid seminars that it sponsors at luxury resorts throughout the country.

At a time when Congress is aggressively scrutinizing the conduct of federal judges, some legal ethics experts and even some of Kleinfeld's colleagues say a "don't ask, don't tell" approach to funding disclosure puts judges in a precarious spot.

They believe judges can better equip themselves against complaints about potential conflicts of interest by demanding to know who funds the continuing education programs they attend.

As the nation's oldest and largest privately funded judicial education program, the Law and Economics Center has for 30 years sponsored seminars on free-market economics and other topics, but not without controversy.

While the programs run are popular with judges, who describe them as intellectually demanding, their reliance on corporate funding has fueled criticism from liberal activists and newspaper editorials that they peddle a pro-business agenda.

Kleinfeld maintains his support for the center's silence on its funding sources.

"I don't have the faintest idea who contributes to George Mason, nor do I want to know," the judge said in a phone interview.

The center, which pays travel and accommodation expenses for judicial seminars, says it has 200 underwriters, all of which contribute via the university's foundation, and that none provide more than a fifth of the center's overall budget.

When a Daily Journal reporter told Kleinfeld last month that Exxon has contributed $215,000 to the center since 1998 - information publicized by Exxon on the Internet in annual reports - the judge responded that he would have preferred not to know. Speaking a day later, Kleinfeld clarified his thoughts.

"It's better that we not know who contributed to the Law and Economics Center," he said. "What we should know is that no organization is contributing so much as to dominate."

Kleinfeld added that Exxon's contribution is "small potatoes" for a corporation of its size, and accounts for a minute proportion of the center's budget.

He also defended his right as a judge to attend educational programs wherever he wants.

"I support as much freedom of speech and diversity of opinion as can possibly be obtained," said Kleinfeld, who was appointed to the bench by President George H.W. Bush in 1991.

At present, no one is arguing that judges should be banned from participating in corporate-funded seminars.

But San Francisco U.S. District Chief Judge Vaughn R. Walker, a frequent seminar participant who sits with Kleinfeld on the center's judicial advisory panel, said it may be time for the program to come clean on where its money comes from.

"I don't see a problem with disclosure," he said. "I have no problem with changing the current policy."

Walker, a Ronald Reagan appointee, said there's nothing inherently wrong with shielding the identity of the center's donors from judges. But he said that in the light of what he termed an "unwarranted suspicion" that special interests are guiding the curriculum, some judges may be unwilling to accept invitations to free seminars without knowing who's underwriting them.

Pasadena-based 9th Circuit Judge Raymond C. Fisher, an appointee of President Bill Clinton, voices similar concerns.

Fisher serves on a U.S. Judicial Conference committee that is addressing ethics issues surrounding privately funded seminars. He made it clear that the judges can do more to avoid negative publicity.

"I think judges need to be more sensitive to the appearance of conflict," he said in an interview. "We are obliged to do that."

Addressing the center's non-disclosure policy, Fisher said the identity of donors is "the kind of information that ought to be out there."

Private Programs Are Popular
Taxpayer-funded continuing education is available to all U.S. judges through the Federal Judicial Center.

But hundreds of federal judges nationwide have opted to participate in educational vacations sponsored by private interests.

Many take place in upscale hotels and resorts in places like Santa Fe, N.M., and Hilton Head, S.C.

In California alone, federal district judges took 36 trips between 1992 and 2004 sponsored either by the Law and Economics Center or the next most active group, the Montana-based Foundation for Research on Economics and the Environment, according to data compiled by Community Rights Counsel.

Many judges attend only once or twice, but others are regulars on the seminar circuit. Walker, of San Francisco, has participated in seven, while Judge Manuel Real of Los Angeles, has gone to six.

Real stands out in another way. He was appointed to the bench in 1966 by Democratic President Lyndon B. Johnson. The vast majority of seminar participants have been Republican appointees.

Controversy Over Law and Economics
The Law and Economics Center was founded in 1974 by Henry G. Manne, who was a law professor at the University of Miami. The center has been based at George Mason University since 1986.

Manne was one of the early proponents of law and economics scholarship, which is the interpretation of the law from an economics perspective.

Manne advocates a conservative anti-regulatory, pro-free-market approach to the law, which now has a strong following at mainstream law schools ranging from the University of Chicago to the University of Virginia.

Left-leaning critics say the center Manne founded, along with Montana-based FREE, seek to teach a conservative approach to the law that favors corporate interests.

George Mason University law professor Francis H. Buckley, director of the center, disputed that assertion, saying the curriculum mirrors that of a liberal arts college.

This year, for example, there are programs on English man of letters Samuel Johnson and Renaissance humanism scattered among the more law-related seminars on "economics and tort law" and "international law from an economic perspective."

Kleinfeld's own participation in classes at the center doesn't fit the stereotype of seminars as brainwashing exercises.

His first seminar, in 2003, took him to New Haven, Conn. - not known as a vacation destination - to study the ancient Greek historian Thucydides. The next fall, Kleinfeld traveled from Alaska to La Jolla, near the San Diego coast, to study the writings of 19th century French historian Alexis de Tocqueville.

Like Kleinfeld, Walker praised the high quality of the programs he has attended since the early 1990s.

"It's a little bit like going back to college," he said. "It's certainly not indoctrination. It's not spoon-feeding a philosophical approach to the law."

The center's Buckley emphasized that the programs are designed to avoid perennial hot-button issues, such as asbestos litigation or punitive damages.

But as long as they've been around, private seminars have been unable to escape negative publicity.

In 1999, the Wall Street Journal reported how industrial giant Koch Industries sought to influence judges by funding seminars run by the University of Kansas and rewarding business-friendly judges with favorable scorecard ratings during election season.

More recently, the media has reported on Community Rights Counsel's findings that judges were flown to Montana for FREE seminars on trips paid for by the same businesses that had litigation in those judges' courts.

Last year, three judges on FREE's advisory board resigned their positions after Community Rights Counsel filed ethics complaints against them.

Community Rights Counsel complained that the judges on FREE's board had too close of a relationship with corporate donors that went beyond merely advising on academic matters.

Exxon's Involvement
ExxonMobil Corp. is not shy about touting its contributions to the Law and Economics Center and other judicial education organizations.

"This is one of many grants ExxonMobil makes in support of activities and efforts aimed at promoting the rule of law and improving the quality of the judiciary," spokesman Dave Gardner said of the company's most recent $30,000 contribution to the center.

Other groups Exxon funds include the Institute for Civil Justice, which is sponsored by the Rand Corp. in Santa Monica, and two not-for-profits, the National Judicial College and the National Center for State Courts.

Another beneficiary is FREE.

Exxon donated $210,000 between 1998 and 2004, according to the company's annual reports on corporate giving.

For a company as large as Exxon that is frequently involved in high-stakes litigation, the nation's courts are an important public resource.

A simple cost-benefit analysis suggests that judicial education is a good investment: Of the six judges on the 9th Circuit in addition to Kleinfeld who have participated in seminars through the Law and Economics Center or FREE since the early 1990s, court records show that all have at some point presided over at least one civil case involving Exxon.

For Community Law Counsel executive director Douglas T. Kendall, Exxon's intent in helping to underwrite seminars is obvious.

"Exxon funds these trips to influence the key judicial decision-makers," he said.

Seminar programs are not the only recipients of academic grants from Exxon.

The company was roundly criticized for funding scholarly studies of jury behavior in the mid-1990s that Exxon lawyers then cited to show that the record-setting punitive damages in the Alaska oil spill case were the work of a runaway jury.

The studies by well-known professors were summarized in an appeal brief filed with the 9th Circuit, but the lawyers didn't mention that Exxon helped to pay for them.

One of the critics is Theodore Eisenberg, a law professor at Cornell Law School, who contends that Exxon's No. 1 priority in paying for the research was "to get the $5 billion in punitive damages reduced."

Eisenberg, who helped write an amicus brief against Exxon in the oil spill case, said in an interview that Exxon had a duty to its shareholders to win the oil spill appeal. Part of the company's strategy, he added, may be to influence judges.

As it turns out, one of the prominent scholars who now lectures on tort law at seminars at the center, Yale University law professor George Priest, wrote an introduction to the book containing all the Exxon-funded jury research.

Priest and another LEC lecturer, William Landes of University of Chicago, also sit on the academic advisory board of the American Enterprise Institute, a pro-business think tank in Washington, D.C., whose board of trustees vice-chairman is the retired chief executive of Exxon.

A third distinguished LEC lecturer, Harvard University law professor Steven Shavell, served as a paid consultant to Exxon in the Alaska oil spill litigation.

Eisenberg emphasized that just because Exxon may have an agenda in funding seminar programs doesn't mean that those programs are necessarily slanted with any corporate bias.

The center's Web site explicitly states that none of its financial supporters have any say in the program.

"The curriculum, faculty, invitation list and acceptance policy for LEC programs is determined solely by professors at George Mason University School of Law," it says.

Exxon's spokesman bristled at the notion that Exxon would seek to influence judges in pending litigation by sponsoring seminars.

"Your question is an insult,' Gardner said.

Funding Disclosure Debate
The point of the center's policy not to disclose its funding to judges is to avoid creating any appearance that judges might be beholden to sponsors.

Some states where judges run for office in contested elections take a similar approach, requiring candidates to refrain from learning the identities of contributors who write checks to their campaigns.

But by and large, conflict of interest rules typically are built on the principle that disclosure is the best way to avoid conflicts.

Ethics rules at both the federal and state level presume that judges are aware of any personal or financial interests that might be affected by their court rulings and require them to recuse themselves when they perceive a possible conflict.

The center says its policy follows a U.S. Judicial Conference advisory opinion on ethics first released in 1980 and most recently revised in 2004.

"It would look bad if we disclosed," Buckley, the program director, said. "The sounder policy, we are advised, is one in which the possibility of these conflicts don't arise."

Buckley acknowledged that "reasonable people may differ" about disclosure versus non-disclosure. He stressed, though, that the final decision rests with center's 14-member advisory board.

Corporate support of the center is less than 10 percent of its overall budget, he added.

Some legal scholars say LEC has opened itself to criticism that it's got something to hide.

Charles Geyh, a professor at Indiana University School of Law at Bloomington, said the reluctance of the center to reveal its funding sources has "given the judiciary a black eye." He said he can understand why some lawmakers want tighter ethics guidelines, even though he personally opposes a pending bill that would create an inspector general for the judiciary.

"The public perception is something that needs to be the focus of attention," he said.

Stephen Gillers, an ethics expert at New York University School of Law, pointed to another flaw in the center's policy of silence about its funding. He noted that judges can easily discover information about at least some corporate donors just by logging onto the Internet.

"It's not possible to keep that deep a secret, and the public won't believe them," Gillers said.

Exxon's contributions to LEC, for instance, are listed both on the corporation's own web site and on, a web site created by environmental activist group Greenpeace to track "how ExxonMobil funds climate change skeptics."

This spring, an announcement of Exxon's contribution to George Mason University Law School showed up somewhere else - in a press release issued by the university and posted on the Internet.

Gillers contends that corporate sponsors actually want judges to know they are underwriting seminars.

Another supporter of full disclosure is Community Rights Counsel. Kendall, the executive director, argues that Judge Kleinfeld has a special duty to know who funds the center above and beyond the judges who attend the various classes.

"Judges sitting on an advisory board have an obligation to know where the money for that organization is coming from," he said.

Kendall also said Kleinfeld should not allow LEC to pay any of his travel expenses while the Exxon case remains pending before him.

FREE, founded in 1985, says it has always released information about its funding sources upon request from judges and scholars who've participated in its programs.

Its policy is to list all its donors on its Web site, said founder and chairman John A. Baden.

FREE receives about 20 percent of its budget from corporate donors, but that money is not assigned to judicial education programs.

Baden said that the majority of funding comes from foundations that have no role in ongoing court cases.

"That minimizes the possibilities of a conflict," he said.

For his part, Kleinfeld said he sees nothing wrong with LEC's policy or with private seminars in general, which he sees as essential to an independent judiciary.

He said any corporation that thinks judges can be bought off might want to reconsider its decision to fund continuing education.

If "some evil corporation that wanted to pollute the environment" was to fund the Law and Economics Center," Kleinfeld said, "the ethical issue there would not be that we were bought ... but that the directors of the corporation wasted their shareholders' money."

Friday, August 04, 2006

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August 4, 2006

Environmentalists Ask Senate to Leave the 9th Circuit Alone

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Environmental activists signaled Thursday that they are quaking in their boots at the prospect of the 9th U.S. Circuit Court of Appeals splitting into two.

More than 100 environmental and left-leaning advocacy groups signed a letter to the Senate Judiciary Committee calling for lawmakers to leave the nation's largest and busiest regional appellate district intact on the grounds that pro-business interests will receive a more favorable hearing in the proposed new 12th Circuit.

The 12th Circuit would include states like Alaska, Oregon, Montana, and Idaho, all of which contain huge swaths of public land where extraction industries like mining and fishing dominate.

"We are demonstrating the broad opposition to the split," said Glenn Sugameli, senior legislative counsel for environmental group Earthjustice, who was the lead writer of the letter.

Signatories include national liberal groups like the Alliance for Justice and the Lawyers Committee for Civil Rights Under Law, in addition to more localized environmental organizations like the California Wilderness Coalition, Alaska Conservation Solutions, and the Oregon Center for Environmental Health.

The letter, addressed to senators, warns that corporate interests "have long desired to increase their ability to judge-shop by dividing the 9th Circuit Court of Appeals into a number of smaller courts of appeals."

Sugameli said in an interview that a split would give the judges in the newly formed circuit an opportunity to shatter a settled body of law on environmental issues, touching on such areas as fishing, mining and grazing rights.

He added that various natural resources, including some rivers, would be spread between the two circuits, which could lead to further inconsistencies in the law.

Lake Tahoe, for example, is divided between California and Nevada.

"It really helps to have one federal court that rules on issues affecting Lake Tahoe," Sugameli said.

But Damien Schiff, a staff attorney at the Sacramento-based Pacific Legal Foundation, took issue with the letter's premise. The foundation advocates for free enterprise and property rights and often takes the opposite side from environmentalists in major court cases.

He said there's no evidence that the proposed 12th Circuit immediately would take a more anti-environmentalist position.

"I'm somewhat skeptical of the argument that simply dividing the 9th Circuit into two would necessarily produce different jurisprudence," he said.

It would, in part, depend on which individual judges leave the 9th Circuit to join the new circuit, he added.

Of the 11 active 9th Circuit judges based in cities that would be folded into a new 12th Circuit, eight were appointed by Democratic presidents, and three were appointed by Republicans. There are two more Republicans on the way if Bush administration nominees William G. Myers and N. Randy Smith, both of Idaho, are confirmed by the Senate.

University of Richmond law professor Carl Tobias, who has been closely following the split debate, said the environmental groups may have good reason to worry. But he said Thursday's letter contains nothing that senators wouldn't know already.

"I think it's relatively clear that [the 12th Circuit] would be more conservative on these kinds of issues," he added. "I think that almost everyone agrees about that."

Under the proposal currently before Congress, the new 9th Circuit would comprise of California, Hawaii and the Northern Mariana Islands.

The new Phoenix, Ariz.-based 12th Circuit would comprise Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.

Thursday's letter further highlights that the proposed split is deeply divisive within the legal community.

Two dozen federal judges, including 9th Circuit members Diarmuid O'Scannlain, Andrew J. Kleinfeld and Richard Tallman, wrote to the Judiciary Committee in July, arguing that a split makes sense for more-efficient court administration.

The committee is due to hold a hearing on the split proposal in the fall.

Tuesday, August 01, 2006

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August 01, 2006


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - In the debate over splitting the 9th U.S. Circuit Court of Appeals, Sen. Dianne Feinstein, D-Calif., has emerged as the champion of her state's judges.

If the sprawling circuit is carved up, the jurists left in California will have little to cheer about, as they will still face a daunting caseload.

In contrast, those in the proposed new 12th Circuit will be able to put their feet up and relax, as they would suddenly have a drastically lower number of cases to handle each year.

To Feinstein, a veteran Democratic legislator who carries extra clout as a member of the Senate Judiciary Committee, it's a basic issue of fairness.

Under the latest proposal to divvy the nation's largest circuit into two parts, California would get seven new judges, two of them temporary.

But even with that additional help, the reconstituted 9th Circuit would face an estimated annual load of 536 cases - just 7 percent less than the 9th Circuit's current caseload of 575 cases per judge.

Judges in the new 12th Circuit, a swath of western states from Arizona to Alaska, would have just 317 cases each year.

"The new 9th Circuit would still have one of the highest caseloads of any circuit court in the country while the newly created 12th Circuit would have one of the lowest caseloads in the country," said Feinstein's spokesman, Howard Gantman.

Feinstein says she will only support a split if California gets a significant number of new judgeships.

Experts and judges calculate that California would need as many as 10 new judges in order for its caseload to match the national average.

Politically speaking that's a tall order, if not impossible.

Supporters of the split, such as 9th Circuit Judge Diarmuid F. O'Scannlain, who sits in Portland, Ore., say California judges should focus on the positive: Under the proposed split, they would be better off than they are now.

He points out that the reconfigured 9th Circuit's caseload would compare favorably with a handful of other circuits. The California judges would have a lighter caseload than those in the Atlanta-based 11th Circuit, the New York-based 2nd Circuit and the New Orleans-based 5th Circuit.

The new 9th's caseload of 536 cases would still be higher than the remaining eight circuits and 28 percent higher than the national average of 419 cases.

Proponents of the split insist the creation of a new 12th circuit is essential because the 9th has grown too large, making it administratively unwieldy.

The 9th Circuit's caseload is currently the second highest after the 11th Circuit. The 9th Circuit also has far more judges than any other circuit, with 26 active judges on the bench, two vacancies yet to be filled and 23 senior judges who work on a reduced schedule.

With a total of 51 full- and part-time judges, the 9th Circuit's roster is almost twice the size of the next biggest, the St. Louis-based 6th Circuit, which has a total of 26 judges.

Under the split proposal currently pending in the Senate, sponsored by Sen. John Ensign, R-Nev., the new 12th circuit would be based on Phoenix and would be comprised of Arizona, Alaska, Idaho, Montana, Nevada, Oregon and Washington.

The new 9th Circuit would be comprised of California, Guam, Hawaii and the Northern Mariana Islands.

With seven new judges, California would be home to 22 active judges and 13 senior judges more judges than any other circuit.

Nevertheless, academics who watch the 9th Circuit say they agree with Feinstein that the prospect of a 7 percent caseload reduction does little to make the proposed split enticing.

"That's still not a striking decrease," said Carl Tobias, a law professor at the University of Richmond. "A larger reduction would be better."

Arthur Hellman, a law professor at the University of Pittsburgh, said it's the "wide, wide discrepancy between the new 9th and the 12th that bothers some people."

Whether there's room for a deal on the number of California judgeships remains to be seen.

Jack Finn, a spokesman for Ensign, said the bill, as drafted, "is the best way to address the caseload" and had been "well researched and very heavily supported."

But when asked about additional judgeships, he added: "There's always room for discussion."

O'Scannlain, the Portland judge who would be assigned to the 12th circuit, said it's fine with him if California gets a few more judges.

"I don't have any trouble with that at all," he said.

Chief Judge Mary M. Schroeder, who sits in Phoenix and opposes the split, has her own ideas as to how many new judgeships would be needed.

She said in an interview that in order to even out the workload between the reconfigured 9th Circuit and the new 12th Circuit, the 9th would need 13 more full-time judges - double what Ensign has proposed.

But Schroeder, a Carter appointee, said such a mass infusion of new judges is unrealistic, in part because of the length of time it takes to fill judicial vacancies.

"It's more than we could ever dream of filling," she said.

Schroeder noted that even with the 9th Circuit's well-known backlog and increasing caseload, vacant seats sometimes takes years to fill because of the Senate confirmation process. President Bush has gotten two nominees confirmed to the court in the last year.

Hellman said Schroeder makes a good point. It's pure "fantasy," he said, to assume that newly created judgeships will be immediately filled.

He said the inherent delays in the appointment process would make for a spike in caseload for California's existing judges, at least for the short term.

"The [Ensign] bill will hurt California by denying it the judges it needs, and, in fact, increases the caseload," Hellman added.

Schroeder said the split would be unnecessary if Congress approved seven new judgeships for the 9th Circuit.

"If we got seven judgeships, the existing circuit could start to function the way we want it to function," she said.

But lawmakers have resisted adding even more judges to the nation's largest circuit.

Some Republicans in the House of Representatives, such as Mike Simpson of Idaho, say they will only approve new judgeships if there's a split.

The stakes are higher than ever this year, as Sen. Arlen Specter, R-Pa., who chairs the judiciary committee, has recently come out in favor of a split and declared it a priority.

Feinstein requested a hearing on the matter, which was penciled in last week, but now looks like it could be postponed until after Congress' August recess.

If Feinstein has in mind the exact number of new California judges that would win her support for a split, she's not revealing it.

"She has said, 'If you can show me a plan that works, I would be willing to consider it,'" Gantman said.

No one has presented such a plan, he added.