PHOENIX β Saying it has nothing to do with politics, top aides to Gov. Doug Ducey said Thursday that their boss wants to split Arizona and some other more conservative states away from the 9th U.S. Circuit Court of Appeals.
Mike Liburdi, the governorβs chief counsel, said the circuit, which covers nine states and two territories, is just too large.
βCases are filed and it takes over 12 months on average to gain a resolution of the case, compared to a little over eight months, on average, in other circuits,β he said. Liburdi said that results in delayed justice for everyone from businesses seeking relief to criminal defendants hoping for review of their convictions.
βWe are calling on Congress to propose and enact a solution for Arizonans, for Arizona voters, for citizens and for Arizona businesses, that will take Arizona out of a court that is backlogged with cases,β he said.
But the split being suggested by the governorβs staff and being crafted into federal legislation has political overtones.
The 9th Circuit would be left with the more liberal states of California, Oregon, Hawaii and Washington. Arizona would end up in a new 12th Circuit with Nevada, Idaho, Montana and Alaska. The judges would come only from the states within each circuit.
Liburdi said, though, that would not necessarily result in more conservative judges on a federal appellate circuit without those more liberal states.
He said the choices would depend heavily on who is in the White House. As proof, he cited the fact that the 9th Circuit includes those of the more liberal bent like Andrew Hurwitz from Arizona who was named to the court by President Obama.
Arizona has often wound up on the losing end of 9th Circuit rulings on everything from efforts to restrict abortions to having the state take actions against people not in this country legally.
Liburdi said thatβs not what this is all about, noting the 9th Circuit has the most decisions overturned by the Supreme Court of any circuit in the country.
Ducey, in a separate prepared statement, said Arizonans deserver βa judicial process that is judicious in nature.β
Yet on those high-profile cases like abortion, immigration and even gay marriage, the Supreme Court has in upheld the appellate court rulings, siding with challengers and against the state.
Cath i Herrod, president of the Center for Arizona Policy, which has been on the losing end of many of those abortion rulings, has endorsed the proposal.
The idea is far from new. A decade ago, Jon Kyl made a similar push when he was a U.S. senator from Arizona.
Gubernatorial press aide Daniel Scarpinato said it was Kyl, a member of Duceyβs transition team, who broached the idea with the governor-elect.
Now Ducey has sent a letter to congressional leaders asking them to take it up. And Liburdi said U.S. Sen. Jeff Flake and Congressman Matt Salmon will be crafting legislation to do just that.
Flake echoed Duceyβs statement that itβs all about numbers.
βArizonans are waiting too long for justice, and for no other reason than the 9th Circuit is oversized and overworked,β he said. βEstablishing an additional circuit would lessen that burden across the West and ensure that the people of Arizona finally get the swift access to the courts that they are entitled to.β
And Salmon said the problems with the size of the court cannot be ignored.
He said the 9th Circuit covers 20 percent of the U.S. population. It also handled 12,000 cases last year; the next highest appellate circuit was at fewer than 7,400.
βTheyβre not able to dispatch justice in a very time-efficient way,β Salmon said. βOur concern is justice delayed is justice denied.β
But attorney Dan Pochoda of the American Civil Liberties Union, which often finds itself filing suit against Arizona β and winning at the 9th Circuit β had a different take.
βItβs clearly politically motivated,β he said.
βIf youβre shopping around to see if you can find the most conservative court in the U.S., thatβs what this would create,β he said.
Sandy Bahr, lobbyist for the Sierra Club, which often challenges the state over environmental issues, was less charitable in her assessment of what Ducey wants.
βHe must think Arizonans are pretty stupid if he thinks we believe this is not political,β she said.
βIt is pretty clear that he is not fond of checks and balances,β Bahr continued, saying the 9th Circuit provides them βto an otherwise runaway train in Arizonaβ on things like protecting public lands and upholding protection for endangered species.
Salmon acknowledged that splitting out Arizona of the current 9th Circuit would have secondary benefits.
βIβve made my thoughts known clear back when I worked in the state Legislature that I believe that the 9th Circuit is ultra-liberal and a lot of its decisions donβt reflect reality in these United States,β he said.
βWould that be a good byproduct to a conservative like me?β Salmon continued. βAbsolutely.β
Technically speaking, the U.S. Supreme Court gets the last word on everything that comes out of every federal appellate court. And that would make the 9th Circuitβs high reversal rate β about 77 percent over the past few years β significant.
According to the court, out of about 10,000 petitions, the justices agree to hear only 75 to 80 cases a year. The remainder, including a large number from the 9th Circuit out of Arizona, are disposed of by the justices refusing to disturb the decision of the appellate court.
That, however, makes the rulings of the 9th Circuit in some ways more important to Arizona than what is ultimately decided by the Supreme Court, and not only for cases coming out of Arizona. Its published decisions from any state in the circuit are binding on federal courts throughout the circuit, including Arizona.
