The California Circuit?

By: Benjamin G. Shatz
– Daily Journal

Like a bad penny, the idea of splitting the 9th Circuit keeps turning up. Ideas for splitting the circuit first arose in the 1960s, and the issue has waxed and waned with political interest over the past half century. One of the most vexing puzzles is precisely how to split the existing 9th Circuit, which includes the nine western states of Montana, Idaho, Washington, Oregon, California, Nevada, Arizona, Alaska and Hawaii (as well as the territories of Guam and the Northern Mariana Islands). California is the gorilla in the room, accounting for most of the circuit's workload. So if the goal is to create smaller circuits with fewer cases, what can be done with California?

The idea of splitting California's districts between different circuits has never been appealing, though it was recommended by the Hruska Commission in 1973. See Commission on the Revision of the Federal Court Appellate System, The Geographical Boundaries of the Several Judicial Circuits: Alternative Proposals, 62 F.R.D. 223 (1973). No state has ever been split that way, and it would cause all sorts of mischief. But what about just excising California entirely, and creating a California Circuit? Again, that idea strikes the ear as just "wrong" for many reasons. After all, there has never been a single-state circuit, right? Or has there?

Actually, there once was a "California Circuit" from 1855 to 1863. To understand its place in history, let's take a quick history tour of the federal judicial circuits.

Article III, section 1 of the Constitution - which "went live" in 1788 when New Hampshire was the ninth state to ratify the Constitution - provides: "The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This empowered Congress to create federal courts now and again, which it did fairly regularly as America expanded to achieve its manifest destiny.

The First Congress, in the Judiciary Act of 1789, created 13 district courts (one for each state and territory) and three regional circuit courts: The Eastern Circuit (for Connecticut, Massachusetts, New Hampshire, and New York, and eventually also Rhode Island and Vermont), The Middle Circuit (Delaware, Maryland, New Jersey, Pennsylvania and Virginia), and The Southern Circuit (Georgia and South Carolina, and later also North Carolina). These circuit courts acted as both trial and appellate courts.

A dozen years later, in 1801, Congress reorganized the judiciary to create six numbered circuits. This ordinal numbering system remains to this day, so that we speak of the 1st Circuit, 2d Circuit, and so on. In 1807, Congress added the 7th Circuit to cover Ohio, Kentucky and Tennessee.

Thirty years later, in 1837, Congress reorganized the circuits again, and added two new circuits: the 8th Circuit, covering Kentucky, Tennessee, and Missouri, and ... (drum roll, please) the first 9th Circuit, covering Alabama, Arkansas, Louisiana and Mississippi.

Congress reorganized the circuits again in 1842, this time leaving the 9th Circuit with only Arkansas and Mississippi. The 5th Circuit was assigned Louisiana and Alabama, meaning that the 9th Circuit bisected the 5th Circuit - the only time in history that continental states in a circuit were not contiguous. The 9th Circuit would be restructured nine more times. But here we focus on "The Golden State," California's "official State Nickname" under Government Code section 420.75.

On Sept. 9, 1850, California joined the Union as the 31st state - without ever having been a territory. (Gov't Code Section 6700, subd. (10).) This is why the Goddess Minerva - who sprung fully born from Zeus's head - appears on the state seal. (Gov't Code Section 405.) The state had two districts, the Northern District of California and the Southern District of California, which were not assigned to any circuit for five years. Until 1889, this was not uncommon; many districts had periods when they were unaffiliated with a circuit.

Congress finally got around to assigning those two districts to a circuit in 1855, when it created the "Circuit Court of the United States for the Districts of California," or simply the California Circuit. (10 Stat. 631, March 2, 1855.) Only one judge ever served in this position, Matthew Hall McAllister, who had moved to California from Georgia. (His name should sound familiar: 350 McAllister Street is the address of the California Supreme Court and First District Court of Appeal.) His annual salary was $4,500.

In 1862, Congress shuffled the circuits again to account for new states, which did not affect California (but did rejigger the 9th Circuit to cover Iowa, Kansas, Minnesota and Missouri). In 1863, however, Congress abolished the California Circuit (12 Stat. 794, March 3, 1863) and created a new 10th Circuit to house California and Oregon. Nevada was added to this 10th Circuit in 1865.

The following year, 1866, Congress reorganized the circuits again, reducing the number back to nine (i.e., abolishing the 10th Circuit). What had been the 10th Circuit now became the 9th Circuit, covering California, Oregon, and Nevada. So 1866 marks the year that California was placed within the 9th Circuit, where it has remained ever since.

The 1891 Circuit Courts of Appeals Act (more commonly called the Evarts Act) created the "United States Circuit Courts of Appeals," a new type of intermediate appellate court that did not have trial court jurisdiction. This new title, "circuit court of appeals," was somewhat confusing, however, because there were still the old "circuit courts" that sat as trial courts. Those "circuit courts" were abolished in 1912, ushering in the modern three-tiered structure of District Courts as trial courts, Courts of Appeals as intermediate appellate courts, and the Supreme Court at the top.

To round out the story, in 1929, the gigantic 13-state 8th Circuit was trimmed down to cover only Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, with the newly reestablished 10th Circuit taking over Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

The official court names were changed in 1948 to the familiar formulation: "Court of Appeals for the X Circuit." Thus, the "Court of Appeals for the District of Columbia" (created in 1893) became the mouthful "United States Court of Appeals for the District of Columbia Circuit." This naming convention dropped the confusing but obsolete term "circuit court." Congress has since taken efforts to consistently use the formulation "U.S. Court of Appeals for X." [Editor's note: Despite this familiar formation, the Daily Journal still stubbornly adheres to AP Style on this matter, which insists on the awkward "9th U.S. Circuit Court of Appeals."] Thus, in 1994, the U.S. Court of Military Appeals was renamed the United States Court of Appeals for the Armed Forces, and in 1999, the United States Court of Veterans Appeals was renamed the United States Court of Appeals for Veteran's Claims. In 1980, the 11th Circuit was created by splitting the 5th Circuit into two three-state circuits. And in 1982, the Court of Appeals for the Federal Circuit was created. See Wheeler & Harrison, Creating the Federal Judicial System (3d ed. 2005) (Federal Judicial Center publication tracing court history, including maps).

So there you have it: For eight years in the 19th century, from 1855 to 1863, there really was a California Circuit. And it existed as a sister-circuit to an old version of the 9th Circuit, which during those years variously covered states now in the 5th, 8th, and 10th Circuits. California was briefly (1863 to 1866) part of the 10th Circuit before finding its happy home in the 9th Circuit in 1866.

Will a California Circuit emerge again? Will the Bard's immortal words from The Tempest (act 2, scene 1) - "what's past is prologue" - prove prophetic? Or are rumblings of a West Coast Swing Dance (Gov't Code Section 421.5 [California's official state dance]) just a tempest in a teapot? Only time and politics will tell.