Ninth Circuit Court of Appeals

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Governor Doug Ducey is working with members of Arizona’s congressional delegation to approve a bill to move Arizona out of the jurisdiction of the Ninth Circuit Court of Appeals, citing an overloaded court as the motive. Attorney Paul Eckstein of the Phoenix law firm Perkins and Coie will talk about the issues involved in moving Arizona out of the court’s territory.

Ted Simons: Coming up next on "Arizona Horizon" -- hear what it would mean to move Arizona out of the 9th Circuit Court of Appeals. Also tonight we'll speak with the interim director of the valley's transit system and learn about a new computer coding school in downtown Phoenix. Those stories next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the friends of PBS. Members of your PBS station. Thank you.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. An effort to reform the state's pension system for police officers and firefighters was introduced at the capitol today. Legislation calling for splitting the cost of police and fire pensions between the employee and city, capping pensions at $110,000 a year, and increasing the amount of time on the job before retirement. The plan would need voter approval. Republican Senator Debbie Lesko is the sponsor.

Video: Pension costs are escalating. Cities can't afford to hire new police and firefighters, and pension debts are piling up. Their system needs to be fixed.
Doing nothing in this situation is simply not an option. PSPRS is not solvent. It's in critical need of reform. This legislation ensures that we control our own destiny rather than having a crisis dictate our future.
This was a true collaborative process and I think that we will all be able to be very pleased with the outcome of this as we see the restoration of this particular retirement system to viability for long-lasting security and safety for our firefighters and our police officers. And indeed for the citizens of the state of Arizona who will also be protected because they would have had the better done on them.

Ted Simons: The legislation is co-sponsored by all 30 state Senators and a majority in the house though the house is reportedly working on a competing plan. Newly sworn in commissioner Andy Tobin says he will not be voting on issues involving Solar City. His son-in-law works for Solar City. Governor Ducey working with members of the state's congressional delegation to move Arizona out of the 9th circuit Court of Appeals which the governor says is too big and overburdened. Critics see it as an attempt to remove the state from what conservatives perceive as a liberal jurisdiction. Here to talks about the possibility is Paul Eckstein, in the law firm of Perkins and Coie. Thanks for being here. What is the ninth circuit Court of Appeals?

Paul Eckstein: It's an intermediate court between District Courts which are trial courts and the Supreme Court of the United States. So when someone appeals from a District Court decision, that person appeals to a Court of Appeals that is close to geographically the District Court. So for Arizona, we're in a circuit called the 9th circuit. There are 11 numbered circuits in the United States plus a circuit called the federal circuit. Plus the D.C. circuit as well. So 13 circuits.

Ted Simons: The 9th circuit we're in it because we are close to San Francisco. Correct? Necessary where the base of the 9th is?

Paul Eckstein: Well, that is the headquarters of the 9th circuit Court of Appeals. Arizona has been in the 9th circuit since statehood, so over 100 years. But the 9th circuit hears arguments in Los Angeles, San Francisco, Seattle, occasionally in Phoenix but those are the three main places that arguments are made.

Ted Simons: How many judges are in the 9th circuit and how do they handle cases?

Paul Eckstein: Total of 44 judges. 29 of whom are active judges. The rest are what are called senior judges. A judge may sit as long as a judge is able to and wants to and hear reduced load after that judge reaches a certain number of years of service and age.

Ted Simons: As far as -- you mentioned California, Arizona-

Paul Eckstein: The states are Arizona, Nevada, California, Oregon, Washington, Idaho, Montana, Alaska, Hawaii, Guam and the northern Marianas.

Ted Simons: With that in mind is -- is it generally considered that the 9th circuit is either the biggest out there, circuit court, and/or the busiest?

Paul Eckstein: It is both. The 9th circuit is biggest in geography. It's the largest by number of judges. 29 active judges whereas the next largest district has 15. And in terms of case load it certainly is the busiest.

Ted Simons: The governor mentioned that when he announced he wanted Arizona out of the 9th circuit. The case log was too big, backlog too big. Valid concerns?

Paul Eckstein: I don't think his concerns as expressed are valid, but if they were valid, there's a simple way to split the circuit. That's only happened twice in the history of the United States. Most recently the 5th circuit, which is Texas and other Southern states was split I think 30 years ago. 35 years ago to create an 11th circuit with Georgia, Florida and perhaps South Carolina. The way you would deal with it, I don't think would make Governor Ducey very happy, to split California. California has four judicial districts, the Central, Southern, Middle Central district and the Northern. So one way to do this would be to put Arizona with the Southern and Central districts of California with Hawaii, Guam, and the Marianas. Wherever you put California it's going to be the biggest district with the most judges and the busiest calendar if you don't split it.

Ted Simons: But would it also be the most over -- the governor called it the most overturned and overburdened in the U.S. Is he correct?

Paul Eckstein: He cited 2010 data and there are years the 9th circuit is most overturned and the most affirmed because it sends the most cases to the Supreme Court. I don't think it's overburdened because it has more judges. The average time from when you file the appeal to when the briefs are filed and when you get oral argument and a decision is longer than some like the first or second circuit are much smaller and produce opinions much more quickly. But it's not the slowest by any means.

Ted Simons: Interesting. Representative Salmon calls it an ultraliberal jurisdiction. Does he have a point?

Paul Eckstein: Well -- where you stand depends on where you sit. From my perspective in my chair I don't view it that way. There are more judges who were appointed by democratic presidents, 19 to nine appointed by Republican presidents. I think it's a balanced court. There are very conservative judges, Judge Kozinski, who was chief judge last time in the early 2000s when Senator Kyl and others tried to split the circuit, was very opposed to it. Chief Judge Wallace, who was chief judge and appointed by Nixon I believe, was also opposed to it. Many of the Republican -- the judges appointed by Republican presidents have expressed their opposition and did in the past to splitting of the circuit. There were only two judges last time around on the 9th circuit who favored a split. All the rest opposed it.

Ted Simons: If the attempt is made to split it in half, maybe even more parts, or maybe create a brand new circuit and put Arizona into this one I think talk was make it with New Mexico and Colorado, Nevada. Whatever the case might be, making a new circuit, splitting the 9th what needs to be done?

Paul Eckstein: Well, it would be very expensive to do that, number one. The judiciary committee would consider a bill, pass the bill. It would go to the house. If it passed it would be presented to the president and the president would have the opportunity to veto it. I would assume if there were Democratic president there would be a veto, but maybe whoever is elected after President Obama would view it differently.

Ted Simons: You mentioned Texas. How often do these things happen?

Paul Eckstein: Once in the last 30 years and once before that in the history of the country. That's it.

Ted Simons: Is this something that is just a bully pulpit thing or is there a realistic chance this could happen?

Paul Eckstein: Oh, I think with a Republican Congress, Republicans holding both House and Senate and presidency, it could happen. But I think there's going to be plenty of opposition. Senator Feinstein from California opposed it vigorously last time and I would think she would again. One senior Senator opposing something like this can stall it for a long time.

Ted Simons: All right, interesting stuff. Thanks for coming in.

Paul Eckstein: Thank you very much.

Paul Eckstein: Attorney

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