9th Circuit Court

9th Circuit's use of technology is argument against splitting it, ABA tells Senate subcommittee

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The ABA has reaffirmed its opposition to breaking up the San Francisco-based 9th U.S. Circuit Court of Appeals.

The Senate Judiciary Subcommittee on Privacy, Technology and the Law has scheduled a hearing for Thursday in Phoenix titled “Rebooting the Ninth Circuit: Why Technology Cannot Solve Its Problems.”

“Contrary to the conclusory title of your hearing, the ABA believes that technological and procedural innovations have enabled the Ninth Circuit to handle caseloads efficiently and maintain a coherent and consistent body of law,” wrote Patricia Lee Refo in a policy letter (PDF) to the subcommittee on behalf of ABA President Hilarie Bass. Refo is a partner with Snell & Wilmer in Phoenix and has held many positions within the ABA, including as chair of the House of Delegates from 2014-2016.

Earlier this month at the ABA Annual Meeting, the delegates voted overwhelmingly in favor of a resolution that opposed a split of the 9th Circuit.

A report submitted along with the resolution provided some historical context for the proposal to split the 9th Circuit. The Hruska Commission, whose recommendations led to the split of the New Orleans-based 5th Circuit and creation of the 11th Circuit in Atlanta, had recommended in 1975 that the 9th Circuit also be split. Although the ABA initially supported that recommendation, it was technological advances made by the 9th Circuit that led the association to change its position on a split in 1990. The ABA made that decision “on the basis that procedural changes and court management innovations allowed the circuit to manage its rising caseload without sacrificing quality or timeliness,” the report stated.

Widespread opposition to breaking up the circuit by lawyers, judges and businesses within the 9th Circuit were pointed out during the House’s deliberation, and Refo mentioned that opposition in her letter. Refo also pointed out that the past three chief judges of the 9th Circuit have all vocally opposed a split.

Refor quoted a statement by former Chief Judge Alex Kozinski to a subcommittee of the House Judiciary Committee last March: “Our geographic size has forced us to experiment and innovate. The size of our judicial corps has given us the resources to develop and deploy innovative techniques.”

Refo urged the subcommittee to “refocus its efforts on assuring that the Ninth Circuit (and the entire federal judiciary) has access to the best technological resources available to perform its adjudicatory functions efficiently and impartially and in a manner that offers litigants timely access to the courts.”

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