ABA Opposes Creation of Appeals Court

The American Bar Assn., rejecting an unprecedented personal plea from a member of the Supreme Court, voted Tuesday to oppose a proposal long advocated by Chief Justice Warren E. Burger to create a new national appeals court to ease the justices’ caseload.

The ABA House of Delegates turned down the Burger proposal despite an appearance on its behalf by Justice William H. Rehnquist, who said that a new court would increase the decision-making capacity of the federal judiciary and help resolve conflicting rulings among appeals courts.

Rehnquist noted that, at present, the Supreme Court is able to grant full review only to about 150--or fewer than 5%--of the more than 4,000 cases that come to the court each year. “This is simply not enough, given the vast amount of litigation and the number of opinions by the courts of appeals and state supreme courts,” he said.

Vote One-Sided

But the delegates, the policy-making arm of the influential, 320,000-member ABA, rejected the proposal by a one-sided voice vote, further weakening its likelihood of passage by Congress.

Under the proposal, the Supreme Court would designate federal circuit judges to sit on a nine-member “intercircuit panel” to decide cases the court refers to them. The panel would be expected to hear up to 50 cases a year, most of them involving interpretations of federal statutes or conflicting rulings among the nation’s 12 regional federal appeals courts. Decisions made by the panel could be appealed to the Supreme Court.

Panel Approves Bill

A bill to establish such an intercircuit panel for an experimental five-year period was approved last year by a Senate Judiciary subcommittee. But, as have such proposals in the past, it has encountered substantial opposition from critics who say it would simply create a costly, confusing and time-consuming “fourth tier” in the federal judicial process.

Burger has urged creation of the panel and last year devoted an entire speech before the ABA to the subject. The chief justice was not present for Tuesday’s vote.

First Visit by Justice

Rehnquist’s appearance marked the first time in recent memory that a member of the court has appeared personally before the delegates to speak on a specific resolution they were considering, ABA officials said.

The new panel, Rehnquist told the group, is “an idea whose time has come.” But he said he disagreed with the chief justice on one aspect of the plan: While Burger has envisioned the panel as allowing the Supreme Court to reduce its workload to about 100 formal decisions annually, Rehnquist said that a new panel could serve to supplement the 150 cases the high court still would decide each year.

“I think we need more decision-making capacity in our federal judicial system than we have now,” he said.

But, in a 90-minute debate on the issue, three federal appellate judges--Floyd R. Gibson of Kansas City, Mo., James L. Oakes of Brattleboro, Vt., and Patricia M. Wald of the District of Columbia--all urged defeat of the proposal, citing doubts about its constitutionality, among other things. “This would only result in confusion and disruption of the administration of justice,” Gibson said.

In another action, the delegates adopted a conciliatory amendment to a resolution opposing proposals made by the American Medical Assn. for sweeping legislation to restrict malpractice suits against doctors.

The resolution firmly rejects several AMA proposals to limit attorney fees, restrict punitive damages and take other steps aimed at reducing malpractice monetary awards and litigation and insurance costs.

The ABA, concluding its midwinter meeting, also nominated Robert MacCrate, a 64-year-old New York City lawyer, to become its president-elect.