Split in the Circuits:
Breaking up the Eighth
By Marshall H. Tanick

For several years, Congress has been considering the possibility of dividing the 9th Circuit Court of Appeals into at least two segments.  The court, headquartered in San Francisco, oversees federal litigation in the Far West.  It comprises the states of California, Nevada, Arizona, Montana, Idaho, Oregon and Washington in the continental United States, as well as Alaska, Hawaii and the Pacific Territories. 

But California is like the 2,000 pound bear, literally and figuratively.  Because of its population — which is nearly 15 percent of the country — its land area, and the complexity of its commercial and personal arrangements and relationships, it dominates the 9th Circuit.

Lawyers, litigants, and some judges in the other states — and even a few Californians — have chafed at California’s predominance.  In response, observers have studied the possibility of splitting the Circuit, creating a free-standing appellate tribunal for California, Arizona, and Nevada and grouping the other jurisdictions in a newly-formed 12th Circuit.  Congress has gotten into the act, too, but has not taken any definitive action. 

The 9th Circuit has attracted attention for other reasons.  Its backlog is severe, accounting for 60 percent of all federal appeals pending for more than a year, and its average dispositional time is about 50 percent longer than the other dozen appellate circuits. 

The 9th also contributes the greatest number of appeals to the U.S. Supreme Court.  Last Term, the High Court issued 84 written opinions, and nearly one-third ruled on cases from the 9th Circuit.  Of those rulings, 72 percent reversed 9th Circuit decisions, thereby reflecting the disparity between the generally perceived liberal slant of the Circuit and the more conservative outlook of the Supreme Court.  In one recent Term, 1996-97, the High Court heard 28 appeals from the 9th Circuit and reversed 27 of them, nearly two-thirds of them unanimously.

But ideology aside, sheer logistics make the 9th Circuit suitable for possible segmentation.  In 2002, there were 7,677 appeals commenced with the 9th Circuit, 5,870 civil and 1,807 criminal.  Of these, 63.5 percent of the civil cases and 47.4 percent of the criminal cases came from California.

While imminent congressional action seems doubtful, the distinct possibility remains that the 9th Circuit may be split.  If so, it will become the second federal circuit to be carved up in recent years.  In 1981, the old 5th Circuit, which comprised six states in the South, was divided into two circuits, with three states remaining in the 5th Circuit and three others located into the newly devised 11th Circuit. 

EIGHTH ENIGMA

While controversy swirls around the Far West jurisdictions, hardly any attention has been devoted to another federal appellate enigma:  what to do about the 8th Circuit? 

If any federal appellate circuit is prone for repositioning, it may be the 8th, which comprises a swath in the central United States west of the Mississippi, consisting of Minnesota, North Dakota and South Dakota, Iowa, Nebraska, Missouri, and Arkansas.

This configuration makes some geographical sense, but otherwise is an anomaly.  While certain commonalities exist between the states, there also are some vast differences that merit reexamination of the 8th Circuit as a single judicial unit. 

For many years, the Circuit has been centered in St. Louis.  That changed, however, with the elevation of Judge Donald Lay to the position of chief judge in 1980.  He moved to the Twin Cities and subsequently a satellite circuit court clerk’s office was established in St. Paul, although St. Louis remains the de jure headquarters for filing of appellate documents and other purposes. 

This creates a number of unusual features.  Minnesota, particularly the Twin Cities of Minneapolis and St. Paul, is the third most active jurisdiction within the Circuit, next to the two Missouri jurisdictions covering the eastern and western portions of that state.  In 2002, the Circuit had a total of 2,736 appeals commenced, 2,037 civil and 699 criminal.  Cases from Minnesota comprised 15.7 percent of the civil cases and 13 percent of the criminal cases.  The most active district was the western district of Missouri, which had 19.3 percent of civil cases and 20.3 percent of criminal cases.  But the two Dakotas, North and South, contributed a total of 189 appeals, about 60 percent civil and 40 percent criminal, for a total of 6.9 percent of the overall appellate caseload. 

These statistical disparities are reflected in cases that seem oddly positioned.  For instance, I was involved several years ago in a case whose situs was International Falls, that consisted of parties centered in Minnesota, and involved three sets of attorneys, including the Minnesota Attorney General’s office, all located in the Twin Cities.  Despite this geographical locus, the appeal was heard in St. Louis, requiring a significant amount of expense and travel.  Boise Cascade Corp. v. Peterson, 939 F.2d 632 (8th Cir. 1991). 

GREATER GAFFES

But there are gaffes other than geographic in nature. 

Minnesota has little in common with Arkansas, except that both shared, for a short while, football coach Lou Holtz, who made a name for himself at the University of Arkansas before spending a couple of years at Minnesota, prior to his departure for Notre Dame.  To be sure, Minnesota voted overwhelmingly for President Bill Clinton, the Arkansas governor, in 1992 and 1996, but Arkansas did not vote for either of Minnesota’s two favorite sons for president,  opting for George Wallace and Richard Nixon over Hubert Humphrey in 1968 and Ronald Reagan over Walter Mondale in 1984.  

Apart from these features, the two states are quite dissimilar juridically.  For example, Arkansas has capital punishment and Minnesota is one of 13 states that currently do not, although efforts are underway to restore it to this state. 

The states are different in other, more mundane ways, too.  Arkansas has a vastly different judicial background, from its days in the Confederacy to modern times.  Its terrain and temperament is different, too.  While Arkansas has Hot Springs, Minnesota has International Falls, known facetiously as “Frostbite Falls” in the “Rocky and Bullwinkle” cartoon series.

Arkansas and Minnesota are not the only dissimilar states within the 8th Circuit.  While the two Dakotas border Minnesota and share some practitioners admitted concurrently in the several states, North and South Dakota are more akin to some of the Rocky Mountain area states, which compose the 10th Circuit, or even the far-flung portions of the 9th Circuit.  North Dakota, for instance, is one of two states, along with Wyoming, that does not recognize a right of privacy.  Minnesota was formerly a part of an antiprivacy trio, until the state Supreme Court recognized the common law right of privacy in Lake v. Wal Mart Stores, Inc., 528 N.W.2d 281 (1998). 

Minnesota law is much more akin to that of Wisconsin, a jurisdiction within the 7th Circuit.  Minnesota law frequently borrows from Wisconsin law, and vice-versa, in dealing with questions of first impression.  See e.g. Milkovich v. Saari, 295 Minn. 155, 203 N.W.2d 408 (1973) (following Wisconsin rule in multi-state tort actions applying the “better” law of neighboring states.)  The people and politics of these two states are more similar to each other than, say, Missouri and Arkansas are to Minnesota. 

REALIGNMENT RIPE

These differences make realignment of the 8th Circuit ripe.  It would make sense to split North Dakota and South Dakota from the 8th Circuit and place them in the 10th, aligned with Kansas, Colorado and adjacent Rocky Mountain jurisdictions.  Arkansas and Missouri, for that matter, could be moved into the 11th Circuit, more attuned to the southwestern states in that area.  To compensate for the loss of those four states, Wisconsin could be moved into the 8th Circuit, since it is more similar to other jurisdictions in the Upper Midwest. 

This type of realignment would place states in their more natural abodes.  North Dakota and South Dakota are more rural and agricultural in nature and would fit in well with the Rocky Mountain states that compose the 10th Circuit.  Wisconsin is more similar to Iowa, Nebraska and, of course, Minnesota, which would make it a more comfortable fit in the 8th Circuit.

Travel time and expenses for lawyers, litigants and judges would be reduced by this realignment.  By becoming more compact, the 8th Circuit would oversee litigation covering 15 million persons in these states, compared to the total of 19.5 million who populate the Circuit as currently composed. 

Given the ambivalence about splitting the 9th Circuit, it is unlikely that the 8th Circuit will be divided in the foreseeable future.  Therefore, this sensible proposition is unlikely to be acted upon any time soon.  It may be wishful thinking of an idea whose time has not yet come.  It would take an act of Congress to correctly split the 8th Circuit, and no one seems inclined to make a federal case out of it, so to speak.

The author acknowledges with thanks Michael J. Freiberg, a law clerk with the firm, who contributed to this article.