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'Break up' the circuit - the 8th!

An appeal is [asking] one court to show its contempt for another.”

     - Finley Peter Dunn (1900)

President Donald Trump’s cry to “break up” one of the federal Circuit Courts of Appeals may have some merit, but it is misdirected.

Frustrated with rulings from federal court judges in the far West adverse to his executive actions regarding immigration travel bans and cutting off funds for so-called sanctuary cities, the president lashed out late last month, calling for splintering of the 9th Circuit Court of Appeals, the federal appellate tribunal that oversees litigation in the far Western states. The jurisdictions include California, Washington and Hawaii, where federal jurists have entered injunctions halting his varied executive initiatives.

The president’s wrath is somewhat misguided because it erupted late in April after a pair of rulings by federal trial court judges, one in Hawaii and the other in San Francisco, in cases that have not yet been addressed by the very appellate tribunal he wishes to dismantle.

Trump’s plea is improperly based on ideological or political reasons, rather than sound assessment of the jurisprudential reasons for splitting up that unit.

Moreover, the proposition to “break up” that circuit runs afoul of deeply-embedded legal principles. The doctrines of separation of powers and checks-and-balances preclude the president from reconstructing the federal court system at his whim. Furthermore, the president lacks the authority to do so, even if it were wise. Because Article III, Section 1 of the U.S. Constitution vests authority in Congress to “ordain and establish” the federal courts, legislation would be required to do what Trump seeks to accomplish.

But the president’s aspiration to restructure the 9th Circuit is not far outside the mainstream. Its liberal-oriented rulings on topics such as consumer rights and employment law issues have been a source of indignation to conservative for years, and it usually has among the highest percentage of reversals each year by the U.S. Supreme Court of any of the 13 federal circuits. Last year, for example, nearly 80 percent of its appeals were overruled by the high court, compared to a 67 percent average across-the-board, ranking it third in reversal rate, a bit of an improvement over its customary top two reversal ratings.

Ideology aside, the 9th Circuit, comprising 29 active appellate judges and 19 senior ones working lesser schedules, is dominated by California. That state has a population more than double the combined size of all 10 of the other constituent parts of the circuit, eight states and a couple of small Pacific territories. Its dominance often causes the smaller entities within the circuit to chafe at the enlarged role that California issues, cases, litigants, lawyers, and judges occupy in its jurisprudence. California, for its part, has some unease at being grouped with a cluster of such smaller jurisdictions.

Measures have been pending in Congress for years to do what the president advocates, “break up” the 9th Circuit, especially from Republican lawmakers in Arizona. But the “break-up” bills have made little progress, and the current structure of the federal appellate system is unlikely to be revamped in the near future. Its 13 tribunals basically are organized on geographic grounds, along with a few specialty courts. The circuits, which review decisions by lower federal trial judges, stretch from the 1st encompassing states in New England to the 9th in the West, with the 10th Circuit snuggled in there composed of states between the Mississippi River through the Rocky Mountains region.

Their decisions are binding only within the states in the respective circuits but are often cited as precedents and followed by tribunals elsewhere. Because only a minuscule number of their decisions, fewer than 1 percent, are reviewed by the U.S. Supreme Court, the circuit court rulings are, as a practical matter, final and conclusive.

While the president’s desire to fracture the 9th is implausible, there is another circuit that does warrant dismantling: the 8th Circuit right here. In addition to Minnesota, it comprises six contiguous and adjoining states: the two Dakotas, Iowa, Nebraska, Missouri, and Arkansas.

8th Circuit established

Established in 1869, the 8th Circuit currently consists of nine active judges and six seniors with somewhat reduced schedules. Two of its longtime anchors are from Minnesota, Judge James Loken, who formerly served as its chief judge and Judge Diana Murphy, who ascended from positions as a state and federal trial court judge in Minneapolis. They are about to be joined by a third Minnesotan, Justice David Stras of the Minnesota Supreme Court, whom President Trump is nominating to that tribunal as Judge Murphy transitions to senior status.

But even with that triumvirate, Minnesota’s position in the 8th Circuit is misplaced. Other than being in the same time zone, it has little in common with the other jurisdictions that compose the unit.

Take Arkansas, for example. Nearly everything about the two states differ, ranging from weather — Arkansas hardly ever sees snow and certainly not in April, as those in the northern part of Minnesota just experienced — to laws and judicial philosophies. Capital punishment has not existed in Minnesota since it was banned in 1911, following a botched hanging execution five years earlier in St. Paul. Arkansas is a hotbed of state-sponsored executions and has been on a binge of them, killing off four heinous convicted murderers in an eight-day span last month alone before running out of lethal injection drugs and running into a temporary injunction by a District Court judge there. Only two other states in the 8th Circuit, Iowa and North Dakota, share Minnesota’s disdain for death sentences, although Nebraska briefly flirted with abolition until reinstated by referendum last year.

But other disparities exist, too, within the circuit. Minnesota has relatively strong laws recognizing employee rights and formidable history of labor unions, although both have been on the wane lately, similar to developments in other sections of the nation.

Liberal leadership

For many years, the 8th was known as a bastion of liberalism on a myriad of issues, under the liberal leadership of legendary judges like Gerald Heaney from Duluth and Donald Lay, a Nebraskan who lived in St. Paul, along with Myron Bright, an Eveleth-born jurist who resided in Fargo and passed away within the past year at age 97.

That venerable trio, along with others, gave the 8th a reputation for being in the vanguard of the law on many cutting-edge issues, including First Amendment rights of freedom of expression and religion. But, in recent years, that ideology has receded, and the 8th has taken on a much more conservative hue, ranking among the least liberal in the land. Despite that trend, its reversal rate at the Supreme Court level has been high, matching or exceeding that of the 9th, and reaching 88 percent last year.

The variances between Minnesota and some of the other components of the 8th Circuit are reflected in the circuit’s drift to the right.

While Minnesota still has comparatively strong employment laws, other states in the 8th Circuit are much more adverse to rights of employees, including long-standing right-to-work laws and other onerous measures in South Dakota and more recently in Iowa, which greatly diminish the rights of workers and unions.

South Dakota allows enormously high interest rates, which encourages many credit card issuers and financial institutions to set up headquarters there. In contrast, Minnesota usury laws more rigorously limit interest rates here under Minn. Stat. § 334.20 et seq.

In addition to these dichotomies, it is inconvenient for Minnesota to be lumped into the 8th Circuit. The appellate court is headquartered in St. Louis, located in the massive Thomas F. Eagleton United States Courthouse overlooking the famed Gateway Arch, although it occasionally holds hearings in the Warren Burger Federal courts building in downtown St. Paul or at law schools in the Twin Cities. But Minnesota litigants and lawyers usually have to travel to St. Louis for appellate hearings, resulting in additional time, travel, and expense.

Variances and vicissitudes

These variances and vicissitudes make it sensible to “break up” the 8th Circuit. Minnesota would more appropriately fit in with Wisconsin or even Illinois, both of which are in the adjoining Seventh Circuit, based in Chicago.

Despite their rivalries in sports, Minnesota and Wisconsin have much in common. The late Robert Sheran, who served two stints on the Minnesota Supreme Court, including one spell as chief justice, once remarked in a lecture about the resemblances between the two states, both sharing a similar population “stock” and with comparable laws. However, the Badger State has veered away from Minnesota in recent years in its unfavorable treatment of employees and labor unions, particularly those in the public sector.

Minnesota and Illinois are more alike, too, than some of the states in the 8th Circuit. They both have one large metropolitan area, growing suburbs and exurban areas, rich agricultural traditions, heavy (although subsiding) industrial complexes, and increasingly diverse ethnic populations.

These similarities breed commonalities among the types of lawsuit that permeate the respective judicial systems, the litigants who are in them, the lawyers who represent them, and the judges and jurors who decide their cases. It would be rational, therefore, for Minnesota to be joined with Wisconsin, Illinois, and perhaps even Michigan, currently in the 6th Circuit, in a newly-configured judicial unit.

So, while President Trump hopes in vain to “break up” the 9th Circuit because he doesn’t like the rulings emanating from it, Minnesota ought to consider whether and how to secede from the 8th Circuit and join comparable jurisdictions to form a more perfect judicial unit.


Home states of 8th Circuit Judges

  • Arkansas 3;
  • Iowa, 3;
  • Missouri, 3;
  • Minnesota, 2;
  • South Dakota, 2;
  • Nebraska, 2.

As published in Minnesota Lawyer