REFERENCE TITLE: division; ninth circuit; urging Congress




State of Arizona


Fifty-third Legislature

First Regular Session




SCM 1002


Introduced by

Senators Griffin: Allen S, Barto, Borrelli, Burges, Fann, Farnsworth D, Kavanagh, Lesko, Montenegro, Petersen, Pratt, Smith, Worsley, Yee





urging the United States Congress to divide the Ninth Circuit into two separate circuits.





To the Congress of the United States of America:

Your memorialist respectfully represents:

Whereas, the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) encompasses the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as well as the Commonwealth of the Northern Mariana Islands and Guam; and 

Whereas, the Ninth Circuit oversees the federal judiciary of nearly one-fifth of the population of the United States, adjudicates nearly 22% of all federal appellate cases and has nearly twice as many judges as the next largest circuit court; and

Whereas, the Ninth Circuit has 29 seats for active judges and a total of 48 active and senior judges who currently preside over cases brought before the court, far more than the maximum recommended in 1998 by the congressionally constituted White Commission; and

Whereas, the Ninth Circuit has the longest median filing‑to‑disposition period of any federal appellate court—15.4 months as of June 30, 2016, compared to a nationwide average of 8.8 months; and

Whereas, the unwieldy size of the Ninth Circuit requires that en banc decisions be heard in panels of 11 judges, less than half of the 29‑judge court, resulting in majority decisions of only six judges, less than one‑fourth of the 29‑judge court, that are cited to reflect the judgment of the circuit as a whole; and

Whereas, in order for a court to produce a coherent body of precedent, the judges on that court must each be familiar with all the opinions published by that court; and

Whereas, it is impossible for the individual Ninth Circuit judges to read the vast number of opinions produced by the court; and

Whereas, this inability to read the court's own precedent makes the production of consistent, coherent decisions impracticable and results in frequent errors by the court, as demonstrated by its extraordinarily high rate of reversal by the United States Supreme Court; and

Whereas, the United States Supreme Court reversed the Ninth Circuit in 79.5% of the Ninth Circuit decisions it reviewed in the four‑year period ending in June 2014; and

Whereas, a three-judge panel consisting of a Ninth Circuit judge, a senior judge and a visiting judge from another circuit or a district court can bind 20% of the nation's population; and

Whereas, the court's amorphous structure and remote location make it difficult for the public, the bar and litigants to achieve a reasonable degree of familiarity with the judges who serve on it; and

Whereas, Article III of the United States Constitution provides that Congress may "ordain and establish" the federal courts, and Congress has, from time to time, established new circuit courts and judicial districts in response to the increased workload of existing federal courts; and

Whereas, in 2016, United States Senator Jeff Flake introduced S. 2490, the Judicial Administration and Improvement Act of 2016, which sought to divide the Ninth Circuit into two circuits, but the bill died in committee; and

Whereas, on January 4, 2017, United States Representative Andy Biggs introduced H.R. 250, which would divide the Ninth Circuit into two circuits.

Wherefore your memorialist, the Senate of the State of Arizona, the House of Representatives concurring, prays:

1.  That the United States Congress divide the Ninth Circuit into two circuits by enacting H.R. 250 or other similar legislation.

2.  That the Secretary of State of the State of Arizona transmit a copy of this Memorial to the President of the United States Senate, the Speaker of the United States House of Representatives and each Member of Congress from the State of Arizona.