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Ninth Circuit Court Retreats to Idaho

IN A PROFESSION THAT IS supposed to be about listening to competing points of view, the 9th U.S. Circuit Court of Appeals over the past few days seemed mostly interested in listening to itself or lawyers invited from large law firms, as the West’s most influential judges and lawyers gathered at the swank Sun Valley Resort.

The tone of the 2008 Ninth Circuit Judicial Conference seemed set from the first day, when Merrill Young, chairman of the combined lawyer/judge committee, a midlevel partner from the international megafirm Gibson Dunn & Crutcher, handed the award for lawyerly achievement to a senior partner in her firm.

Though Sun Valley is primarily a ski resort, the summers put the “Sun” in its title. The days were in the high 80s, the nights chilly with an uninterrupted view of the stars. The conference has been repeatedly held in Sun Valley, and Associate Justice of the United States Supreme Court Anthony Kennedy reminisced about organizing one of them when he was a 9th Circuit appellate judge. (The primary criteria for picking a location appear to be tanning and golf. Last year’s location was Hawaii, and next year’s is Monterey.)

The press was excluded from many of the events. I was escorted away from an unfenced cocktail party in the open air while looking to speak with the conference’s organizer, Circuit Judge Richard Clifton.

The chief judge of the 9th Circuit, Alex Kozinski, whom I had tangled with in public in recent weeks when I discovered and publicized the porno-based humor he kept on his private Web site, canceled his question-and-answer event and made his way around the resort with a retinue of four to six armed U.S. Marshals. (Justice Kennedy, whom I saw out on the town during the conference, required just two marshals.)

The few times I did see him in the hallways and patios of the resort, Kozinski appeared particularly reluctant to chat with trial-court judges — the folks the appellate court oversees. This is hardly surprising. Kozinksi has a sharp tongue and an even sharper pen when reviewing lower-court decisions. Before the chief judgeship rotated to him, some District Court judges tried to find out if there was any way to disqualify Kozinski from holding the administrative conch, according to a solid source in the court bureaucracy.

To the extent that the faults of the 9th Circuit or any of its judges were discussed — these came up very rarely in this supposed retreat week of self-examination — the conference focused on the people who don’t accept our legal system.

At the final panel, featuring lawyers from Google and Intel, the latter’s Bruce Sewell complained vociferously about the European Commission’s antitrust decisions against his company, which are causing both companies billions in missed profits.

When asked by the moderator how the European Commission was dealt with, Sewell stated that Intel and Microsoft teamed up in opportunistic coalitions with other industries in big European countries, thus exporting the more lax U.S. antitrust “rule of law” onto the backward Europeans.

At another point, Intel’s Sewell provided an anecdote from India about how to cope with judicial corruption abroad. He relayed a tale of a local employment dispute resulting in the arrest of Intel’s human-resources manager, and involving bribes that were demanded by the Indians every step of the way. Intel’s solution was to tell the governor of the particular Indian state that the company would halt all additional investment. The HR manager was released from custody.

Such tactics met with nods and smiles from the rest of the panel, which included a representative of the federal Securities and Exchange Commission.

Shortly after that panel, Supreme Court Justice Anthony Kennedy gave a speech to the federal judges gathered and handpicked lawyers who come before the 9th Circuit, declaring that they should spread the “rule of law” to “failed states” in Africa and Asia.

This seemed odd advice. Many of the 9th Circuit’s judges, such as Richard Tallman, already bitterly complained about the number of hours they must spend squeezed into airline seats for this job. Stretching across the nine Western states plus Guam and the Mariana Islands, the 9th Circuit covers one-fifth of the U.S. population with 28 appellate judges, 112 trial-court judges and 178 bankruptcy judges and magistrates. They are spread very thinly in comparison to California’s state courts. Los Angeles County alone has 28 appellate judges, 429 trial-court judges and about 204 secondary commissioners and referees.

Justice Kennedy’s exhortation to spread the wisdom of the American legal system was one of two themes at the high-powered conference. The other was the counterintuitive reality that while the number of cases filed in federal courts remains fairly stable, there are fewer chances to argue these cases in public. The result is the increasing squelching of formal public debate over important issues of law.

 

At one point, appellate Judge Jay Bybee noted that in the past 20 years, the Supreme Court has slashed its 120 annual cases to 60, although it hears oral arguments on nearly all of those.

Just down the street from the Supreme Court is the U.S. Court of Appeals for the District of Columbia Circuit. It deals with only a fraction of the cases handled by the 9th Circuit, but is considered equally important because it rules on weighty cases involving federal agencies. The D.C. Circuit decided only 541 cases last year, as compared to the 6,503 cases decided by the 9th Circuit in 2007. Of those 541, the D.C. Circuit Court heard arguments in 285 and kept busy writing full opinions on 241, which represents almost half of its total cases.

THE NINTH CIRCUIT, HOWEVER, is in a different situation entirely, and the reasons might seem somewhat bizarre to the foreigners to whom the federal judiciary would like to sell the American-style “rule of law.” The 9th Circuit’s members heard arguments in only about 28 percent of their 6,503 cases, or 1,849, and, unlike the D.C. court, wrote full opinions on less than 10 percent of the total, or 593.

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As U.S. Circuit Judge Andrew Kleinfeld wrote for the Web site How Appealing in 2003, the bulk of 9th Circuit cases are decided via motions and screening panels rushed through “in a few days,” which involves as many examinations “of the briefs, record and unpublished dispositions as we feel we can do in a very few minutes.”

These practices are now spreading down to the trial courts. At one panel, District Court Judge William Alsup of San Francisco pointed out that by slashing the number of hearings, the 9th Circuit is hearing fewer of the younger lawyers, who as a result are getting virtually no experience framing oral arguments. That, in turn, bodes poorly for how law is debated in the West.

Later, Alsup conducted an electronic poll on the topic, and the word back was that even in this handpicked audience, folks are worried about the 9th Circuit’s increasing tendency, as one participant put it, to “eat our seed corn.”

A later attempt at an instant poll didn’t work out, when the polling device failed. So the crowd was asked to answer, via paper ballot, whether it agrees with a recommendation to ban all interviews of jurors after federal trials. (The 9th Circuit has yet to announce what these insiders thought about the idea of reducing transparency in the courts.)

While these discussions unfolded, the stoop-shouldered specter of the 9th Circuit’s own judicial-misconduct problems, District Court Judge Manuel Real of Los Angeles, watched silently in the audience one day.

Real has been the subject of eight years of judicial-misconduct proceedings arising from accusations that he regularly refuses to follow the law and, in one case, took over a bankruptcy case to assist a female convict under his supervision. Leading the charge against Real was Kozinski, until he was recently removed from the Judicial Council of the 9th Circuit after he ordered an investigation of his own Web site’s porn and possibly pirated MP3 contents.

(Separately, the former head of the Administrative Office of the Courts, Ralph Mecham, has publicly accused Kozinski of committing a felony by disabling the 9th Circuit’s computer firewall during Kozinski’s battle to maintain unfettered access on federal computers to the Internet.)

The same Judicial Council from which Kozinski was removed is also facing accusations that its investigation of Nevada District Court Judge James Mahan, sparked by a Los Angeles Times exposé on alleged Nevada state-court corruption, is sitting on a request to release interviews and documents that the council insists vindicate Mahan.

The 9th Circuit’s problems, while extreme, are not unique. In the 5th Circuit, comprising Texas, Louisiana and Mississippi, a special investigative panel has called for the impeachment of Judge Thomas Porteous for accepting gifts from attorneys who came before him, then lying about it. And Judge Samuel Kent is the subject of a grand-jury investigation prompted by a Congressional uproar after Kent got a wrist-slap for allegedly sexually assaulting a staffer.

While California’s state-court system is seen by many as basically honest thanks to a Commission on Judicial Performance that has fired state-court judges for filing false expense reports or failing to keep an orderly courtroom (the commission has also tongue-lashed or nudged into retirement several more judges), other states covered by the 9th Circuit are not so lucky.

 

Nevada’s “pay for play” judiciary was well documented in the Los Angeles Times’ “Juice for Justice” series two years ago. In Arizona, the state’s own watchdog has documented instances in which elected judges use their judicial powers to favor friends or settle scores. In Washington state, the courts have been accused of appointing the employees of private litigants as special masters or judicial referees to decide cases involving those very litigants.

Federal courts have the power to enjoin or enter declaratory judgments against such lower-court misbehavior. But the 9th Circuit typically disposes of these cases through unpublished decisions with no oral argument — another example of its isolation and lack of engagement. Yet this potentially hot topic somehow failed to come up in Sun Valley last week.

If Justice Kennedy were looking for someone to lecture about judicial integrity, he could save himself some jet lag and forget about Africa and Asia. The most isolated, most hurried, most thinly stretched Circuit Court in the nation, the 9th, could almost certainly find opportunities for reform much closer to home.


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