Thursday, January 28, 2016

FACT CHECK: Evidence Warrants Reversal Of Gov. Ducey Claims About 9th Circuit

(UPDATE, 6/9/16: A new article updating the slow death of the Arizona GOP effort to split the 9th Circuit. Also, regarding the conclusion below, please note that the bills later introduced proposed creating a new 12th Circuit, with Arizona as the clear power state in it.)

Arizona Governor Doug Ducey (R-AZ) today announced "a partnership" with two members of Arizona's Congressional delegation to begin a new push to separate Arizona from the U.S. 9th Circuit Court of Appeals.  Further, he would like to see it attached to "any must-pass legislation" coming up this year.

The first "fact" that he states in his October letter to the Speaker of the House and the Senate Majority Leader - dated the day after Paul Ryan became Speaker - is that "(t)he 9th Circuit is currently the most overturned court, having a 77% reversal rate." In his press release, he states it is "by far the most overturned".

FACT CHECK: Mostly false, misleading.  Ducey's letter - and, his statement in the news release - cleverly links "most overturned" to the "reversal rate". However, the 9th Circuit DOES NOT have the highest reversal rate, which is the only logical way to evaluate that claim. (Although, realistically, the reversal rate should only be an argument in removing Arizona IF you want to move from a Circuit perceived as "liberal" to one seen as "conservative".)

Arizona's Politics reviewed the Supreme Court's decisions on affirming or reversing the 13 circuits (and state courts) for the past five years. (This was only possible because of the "stat packs" provided by the wonderful, authoritative source on all things Supreme Court-related, SCOTUSblog.)  Between 2010 and 2015, the U.S. Supreme Court reversed 71% of ALL federal cases it decided; not surprisingly, 6 of the 13 Circuits were reversed more than the average.

And, three of the Circuits have HIGHER reversal rates than the 9th Circuit. (Hello, 8th, 6th and 11th.) MUCH higher reversal rates - 87%, 86% and 86%. (It is unlikely that anyone even describes those circuits as more liberal than the 9th.)  Even more startling, the 9th Circuit had the 3rd LOWEST reversal rate (63%) this past term - better than the neighboring 10th Circuit that the Governor would like to see Arizona move to.

The second set of facts that Governor Ducey relies on is:
Due to its geographic size - nine states and two possessions - the Ninth Circuit produces a voluminous docket resulting in delayed case resolution and inconsistent results. It is presently estimated that the court has 14,076 pending cases with a disposition time of 15 months. This is nearly three times as many as the next largest circuit's caseload.
He was even more descriptive in his statement to the press to support calling the 9th Circuit "by far... the most overburdened":
Meanwhile, due to its voluminous caseload and disproportionate size, the Ninth Circuit has an abysmal turnaround time of over 15 months for an average ruling – a figure that’s only going to grow as the docket does. (emphasis added)

FACT CHECKSignificantly false and misleading.  There are several inaccuracies in these statements. The most recent statistics from the Administrative Office which oversees all federal courts show fewer cases and a much lower "disposition time". It also shows that the number of cases being filed - in the 9th Circuit and in all the appellate circuits - is shrinking rather than growing. (Zero for three, for the Governor.)

The most recent statistics were published this past year for cases as of June 30, 2015.  (Re-published below) It also shows the past several years' statistics and ranks the circuits, for comparative purposes. It shows 13,760 pending appeals with a disposition time of 12.8 months. Those numbers have both shrunk over the past five years.

Of course, it is correct that the 9th Circuit has many more pending appeals than the next largest circuit (the 11th); however, when factoring in that the 9th also has twice as many panels of judges than the 11th, you find that the pending appeals PER panel is only 57% higher (much less than "three times as many") - 1,423 vs. 905.

More misleading is linking "the geographic size" to being "by far...the most overburdened." As a minor point, the geographic size is not what makes the 9th Circuit the busiest - it is the population (individual and business) that is more determinative  of caseload. But, the logical measure of "overburdened" is the disposition time, and not the size or the number of cases. The 9th Circuit's disposition time is 0.1 month longer than the 1st Circuit and 1.2 months shorter than the D.C. Circuit (which does have a significantly different type of caseload).  The numbers show that the 9th Circuit's (shortening) disposition time is poorer than its peers, but certainly not "by far".

CONCLUSION: The Governor and Republican lawmakers certainly can make their case that Arizona would be better served in either the 10th Circuit or by splitting the 9th Circuit in two. However, to falsely build that case on incorrect statistics and to overstate erroneous conclusions is wrong and misleading. The evidence warrants a reversal of Governor Ducey's claims.


A final interesting note: The Governor's letter came a couple of months after the Supreme Court AFFIRMED the 9th Circuit on the (1st) Arizona redistricting challenge and one year after it basically affirmed 9th Circuit on the follow-up SB1070 case (by not accepting certiorari).* In 2013, the Supreme Court also AFFIRMED the 9th Circuit in ruling against Arizona regarding its voter registration forms. The Supreme Court did REVERSE the 9th Circuit last year in the Gilbert sign code case.

(Paul Weich, an attorney in Tempe, contributed this article.)

* The important Arizona case regarding the SB1070 anti-illegal immigration law partly affirmed and partly reversed the 9th Circuit decision. SCOTUSblog tells Arizona's Politics that they make a case-by-case determination in such cases as to which is "the more significant part of the ruling".

(Paul Weich, an attorney in Tempe, contributed this article.)

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