Jurists Improve Turnover Rate


For a change, the reviews for the California-based federal appeals court were not all bad at the Supreme Court this year.

In four cases, the high court upheld decisions rendered by the liberal-leaning U.S. 9th Circuit Court of Appeals, including one that reversed a death penalty.

This marks an improvement from a year ago, when the justices reversed 28 of 29 cases coming from the appeals court for the West Coast. In the term completed last week, the justices reversed 13 of 17 cases from the 9th Circuit.

Some of the reversals sharply illustrated the differing philosophies of the two courts. For example, the high court justices on an 8-1 vote upheld the “decency” rule that Congress imposed on the National Endowment for the Arts. The 9th Circuit had sided with four “performance artists” and struck it down as a free-speech violation.


The justices, by a 9-0 vote, also shielded police from being sued for injuries or deaths resulting from high-speed pursuits. They reversed a 9th Circuit ruling that would have held the police liable for “reckless” pursuits.

For their part, the judges of the 9th Circuit tend to downplay the annual tally of cases affirmed or reversed by the high court.

“It doesn’t mean a hoot,” said Chief Judge Procter Hug Jr. of Reno. “It’s really not a very good indicator, since we decide something like 4,600 cases a year.”

The Supreme Court only reviews a tiny percentage of them, he stressed. “Naturally, we are happy to have the four affirmances,” he added.


The East Coast-West Coast division of opinion goes back nearly 20 years. Under President Carter, the 9th Circuit was expanded, and a series of liberal Democratic judges were appointed.

At the same time, the Supreme Court became dominated by conservative Republicans. For a generation, extending from 1967 to 1993, all the new justices were appointed by GOP presidents. The result was two courts that tended to lean in opposite directions on most disputed points of law.

This year, typically, the two courts differed on the death penalty.

Last summer, the 9th Circuit intervened at the last minute to block California’s move to execute convicted Orange County murderer Thomas Thompson. On a 7-4 vote, the appeals court overturned his death sentence on the grounds that his trial lawyer failed to contest the charge that Thompson raped his victim. Without the extra rape charge, he could not have been sentenced to death, the appeals court said.


The Supreme Court reversed that decision and reinstated Thompson’s death sentence in an opinion marked by its angry tone. “It was a grave abuse of discretion” for the appeals court to intervene in a 15-year-old case, said Justice Anthony M. Kennedy.

The justices also reversed a 9th Circuit ruling that had blocked California prosecutors from seeking fast-track appeals in death penalty cases.

But the Supreme Court agreed with the 9th Circuit that a condemned inmate deserves a chance to argue that he should be spared because he is insane.

Lawyers for Ramon Martinez-Villareal, who was facing execution in Arizona, pleaded that he was insane. A federal judge in Phoenix ruled it was too late to make that claim, but the 9th Circuit intervened to stop the execution. “We hold the Court of Appeals was correct,” Chief Justice William H. Rehnquist said for the 7-2 Supreme Court majority.


In an unusual case from Seattle, the court agreed with the 9th Circuit that a prosecutor is not immune from being sued if she signs a false search warrant.

The high court also agreed with the 9th Circuit’s view that California state officials did not have a right to claim all shipwrecks found in its coastal waters. Those disputes must be resolved under federal maritime law, both courts said.

And, on a 5-4 vote, the justices concurred with the 9th Circuit that it was unconstitutional for U.S. officials to seize and keep the more than $300,000 in cash that was found hidden in the luggage of a Hollywood man traveling overseas. The man was concerned that the money--his business proceeds--would be stolen by corrupt customs officials in his native Syria. The seizure of the money by the U.S. officials amounted to a grossly excessive fine for failing to file a currency transaction report, both courts agreed.