Appeals Court Has Reversal of Fortune

Sometimes it is hard to believe that the judges of the U.S. 9th Circuit Court of Appeals and the justices of the U.S. Supreme Court are working from the same laws.

During the past year, the high court reviewed 29 cases from the appeals court for California and eight other Western states--and reversed 28 of them. And in nearly two-thirds of those cases, the reversal was unanimous.

With its reputation as a liberal-leaning court, the 9th Circuit usually fares poorly before the more conservative high court. But this year the reversal rate was its worst in at least a decade.

A bit prickly on the subject, members of the 9th Circuit say the statistics are overrated.

“This isn’t baseball,” one judge retorted.

“I think there is too much emphasis on these numbers. We have good years and bad years,” said Chief Judge Procter Hug Jr. of Reno, acknowledging that this year is one of the latter.

The 9th Circuit and the Supreme Court differed on the momentous issues--such as the “right to die” and the Brady Act--as well as on minor technical issues involving taxes and maritime disputes.

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The San Francisco-based appeals court, in an 8-3 ruling, declared that dying patients have a constitutional right to seek medical help to “hasten death.” The Supreme Court reversed that ruling on a 9-0 vote.

In an important environmental case, the 9th Circuit ruled ranchers and developers cannot use the Endangered Species Act to challenge the government’s effort to protect threatened fish and birds.

Again disagreeing on a 9-0 vote, the Supreme Court said the law allows “any person” to sue, including those who say the government is saving too much water in order to protect a small, endangered fish.

In another case, the 9th Circuit, siding with a Spanish-speaking state worker, struck down the Arizona voter initiative that mandated an “English only” policy for state government. On a 9-0 vote, the Supreme Court threw out that decision and said the lawsuit should have been dismissed years earlier as moot.

On a few occasions, the Supreme Court actually overturned conservative rulings by the 9th Circuit. For example, a three-judge panel of the 9th Circuit rejected a lawsuit filed by Los Angeles railroad workers whose jobs were contracted out, concluding that federal law did not protect them from a loss of benefits because employers are not required to provide health care and related benefits.

The high court again disagreed on a 9-0 vote. A 1974 law clearly covers both pensions and benefits, the justices said, and it prohibits employers from discharging workers so as to save paying for those benefits.

The only 9th Circuit ruling that emerged unscathed from the Supreme Court during the past year came in a case involving how to divide up small plots of Indian tribal land.

For appeals courts around the nation, the end-of-the-term tally of “affirmances” and “reversals” from the Supreme Court is a topic of much conversation. Some judges refer it to as “getting our report cards.”

Most have what looks like C-minus grades because the Supreme Court typically reverses about two-thirds of the rulings it reviews; the cases that the justices elect to review tend to be those on which they think the lower court’s decision was wrong.

But no appeals court is reversed as regularly and as often as the huge 9th Circuit.

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For example, the U.S. 8th Circuit Court of Appeals, which is based in St. Louis and spans seven Midwestern states, had the second most cases reviewed, and its record was 4-4.

The high court unanimously upheld four of its rulings, including an affirmance denying immunity to President Clinton in the Paula Corbin Jones sexual-harassment case. It reversed four others, including a 6-3 vote on a ruling that would have blocked insider-trading charges against people who are not corporate insiders.

The 9th Circuit is by far the largest of the 12 regional appeals courts in the federal system. Its 19 active judges, usually sitting in panels of three, hear appeals from federal trial courts in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.

Some judges say its reputation as being left-leaning is rather out of date. Though it has several prominent liberals appointed by President Carter, 10 of its judges--a slight majority--are Republicans appointed by Presidents Reagan or Bush.

Still, the very size of the circuit can make for some unrepresentative rulings because nearly all the decisions emerge from randomly selected three-judge panels.

“As a whole, the 9th Circuit is not necessarily more liberal, but it has some hard-core liberals who are out of step with the Supreme Court,” said UCLA law professor Eugene Volokh, a former clerk at the high court. “Given the size and the workload, there will be some decisions coming from very liberal panels.”

The same phenomenon can work the other way too. Lawyers challenging Proposition 209, the California voter initiative that banned the use of race as a factor in public programs, said they were dismayed to draw a 9th Circuit panel that included three conservatives.

For its part, the Supreme Court has nearly total discretion to choose its cases. In recent years, it has agreed to review roughly 80 cases per term from more than 7,000 appeals.

And to a surprising extent, the high court seemed to target 9th Circuit decisions for review and reversal, and did so with a tone of irritation. Sometimes the reversals were announced without even bothering to hear arguments.

For example, the 9th Circuit put on hold a new Montana law that allowed only doctors, not physician assistants, to perform abortions. A lawsuit filed by abortion-rights advocates stood “a fair chance of success,” the appeals court said.

Reversing that decision in a brief opinion, the high court said the lawsuit stood no chance of success, and it reinstated the Montana law.

“Maybe the Supreme Court is trying to tell us something,” said Judge Diarmuid F. O’Scannlain, a Bush appointee from Portland, Ore. “I think we’re all trying to sort out what it means.”

He suggested that the 9th Circuit should meet together more often in groups of 11 judges to review decisions by the three-judge panels.

Although he is a conservative, even O’Scannlain suffered a reversal of a decision at the hands of the Supreme Court. On a 5-4 vote, the high court overturned his ruling that struck down, on free-speech grounds, a federal agriculture regulation that forces California growers to pay for generic advertisements for farm products.

Other 9th Circuit judges say the reversal rate should be ignored.

“It’s a meaningless number. This isn’t baseball or football,” said Judge Stephen S. Trott of Boise, Idaho. “There is an awful lot of unintelligent comment on these numbers. You have to look at the cases and the law.”

A former U.S. attorney in Los Angeles, Trott did not figure in a single reversal.

Chief Judge Hug said the Supreme Court’s policy of selecting a few cases for review and reversal has the effect of making the appeals court look bad.

“There are 4,600 dispositions [decisions] by this court in a year,” Hug said. “The fact that 27 or 28 are picked out by the Supreme Court for reversal doesn’t say a lot about the quality of work that the 9th Circuit is turning out.”

And a reversal, he added, doesn’t mean the ruling was wrong.

For example, he was the author of a ruling last year that said sentencing judges cannot take into account charges on which the defendant was acquitted. That is simple justice, he said.

The high court disagreed on a 7-2 vote.

“I’m not embarrassed one bit by that one. I stand by my guns,” Hug said. “I think the Supreme Court was wrong.”

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

A Year of Reversals

Disagreements between the 9th Circuit and Supreme Court:

Can a sentencing judge take into account charges on which the defendant was acquitted? (U.S. vs. Watts, Jan 6.)

9th Circuit

No

Supreme Court

Yes (7-2)

Can a tax deadline for seeking a refund be waived in the interest of fairness when a daughter discovers her senile father wrongly paid $7,000 in taxes? (U.S. vs. Brockamp, Feb. 18.)

9th Circuit

Yes

Supreme Court

No (9-0)

Can a state mandate an English-only policy? (Arizonans for Official English vs. Arizona, March 3.)

9th Circuit

No

Supreme Court

Yes (9-0)

Can ranchers sue the government for doing too much to protect endangered species? (Bennett vs. Plenart, March 19.)

9th Circuit

No

Supreme Court

Yes (9-0)

Can thousands of single parents sue the state for failing to collect owed child support? (Blessing vs. Freestone, April 21.)

9th Circuit

Yes

Supreme Court

No (9-0)

Can property owners sue immediately for compensation if they are blocked from building on their land? (Suitum vs. Tahoe Regional Planning Agency, May 27.)

9th Circuit

No

Supreme Court

Yes (9-0)

Can a state require that abortions be performed only by doctors? (Mazurek vs. Armstrong, June 16.)

9th Circuit

No

Supreme Court

Yes (6-3)

Can a whistleblower sue Hughes Aircraft for alleged fraud in early 1980s? (Hughes Aircraft vs. U.S., June 16.)

9th Circuit

Yes

Supreme Court

No (9-0)

Can state officials be sued in federal courts by tribes seeking water rights? (Idaho vs. Coeur d’Alene Tribe, June 23.)

9th Circuit

Yes

Supreme Court

No (5-4)

Can growers be forced to pay for generic ads? (Glickman vs. Wileman Brothers, June 25.)

9th Circuit

No

Supreme Court

Yes (5-4)

Do terminally ill patients have a right to doctor-assisted suicide? (Washington vs. Glucksberg, June 26).

9th Circuit

Yes

Supreme Court

No (9-0)

Is the Brady Act constitutional? (Printz vs. U.S., June 27.)

9th Circuit

Yes

Supreme Court

No (5-4)

Source: Times Washington Bureau

--- UNPUBLISHED NOTE ---

This article incorrectly said that U.S. 9th Circuit Court of Appeals Judge Diarmuid F. O’Scannlain was appointed by President George Bush. He was appointed by President Ronald Reagan.

--- END NOTE ---